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Video Game Marketing

Indie Game Marketing from the author of the Game Marketing book, The Indie Developer's Guide to Selling Games. Video Game Marketing made simple... or at least as simple as I can make it.

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Location: Philomath, Oregon, United States

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Thursday, December 22, 2005

Software Trademarks

I had an interesting conversation today with Kellogg Creek Software (Power Politics, Spirit Wars) and it brought up a very important point.

This isn't in the book because it isn't something your average indie will worry about... however, it may be interesting for some of you readers out there to learn.

Trademarks and Tradenames do NOT protect your concept from large companies. Tradenames can protect your concept from small companies, about your size or smaller, but when a major corporation comes and steals your Tradename you are "Shit out of luck."

In the Kellog Creek Software incident, specifically, Hasbro infringed on KCS's Spirit Wars. The end result of the lawsuit nearly put KCS out of business, despite the fact they WON.

This is pretty common, and in talking with the owner he says the piece of advice he should have listened to was when another firm said the best thing to do when this case began was to write an appology letter to Hasbro and offer them (for free) the rights to his product.

Sounds crazy doesn it? Just keep in mind they have money and you don't. They have teams of lawyers and you don't. They play dirty as sin... and if you try to you'll be worse off for it.

So establish a copyright, trademark, and trade name, but do not think for a second it (or anything) you do makes you terribly safe from large corporations.

I've heard plenty of other horror stories like this, including a SECOND one from Hasbro.

Kudos to Kellogg Creek Software (www.kelloggcreek.com) for sticking to their guns and winning a settlement. Shame it couldnt amount to anywhere near the legal fees and lost time it caused.



Blogger mahlzeit said...

Copyrights do not protect "concepts" at all, only specific implementations of the concept. I know this isn't what you're talking about -- I just wanted to be anal about it (IANAL, after all). ;-)

5:18 AM  
Anonymous Anonymous said...

I think you're talking about a trademark, not a copyright.

Copyrights protect a work from being duplicated without your permission. If I write a book, Hasbro can't go and publish copies of it. Copyrights actually do work for small companies. It's pretty easy to prove when your copyright has been violated, and there are lots of laws to help. Really, the best thing that could happen would be if a nice rich company infringed on my copyright...I'd probably make more money that I would have made selling it on my own.

Trademarks are a different beast. A trademark protects a name or symbol...your company, product, a logo, etc. The trouble is that trademark infringement is difficult to prove, and involves a lot of grey areas, like determining if the trademark is confusingly similar to another, and when it was established in trade.

Trademarks require a LOT of litigation, and pretty much the biggest lawyer wins. They are also very expensive to get for a small developer...$330 per class, not to mention the legal costs of doing trademark searches.

Which is why I won't bother getting any trademarks. As a small developer, I can't defend them effectively anyway, so why bother?

9:50 AM  
Blogger cliff said...

The american legal system is fundamentally broken. it seems that money talks, and justice can go shoot itself. Thankfully I'm a UK developer.

7:19 AM  
Blogger VGsmart said...

You are probably right- I believe I mis-spoke and said Copyright when I meant Tradename.

I'm not a lawyer either, afterall :)


12:53 PM  
Blogger RandyChase said...

Thanks for the kind words! (I just noticed this today...)

The thing for small developers or publishers to be aware of is that when you do decide to go the trademark route is that you are committing yourself to a long-term process that will invariably involve some legal expenses.

If you don't "aggressively defend" your mark (and continue to use it in "commerce," i.e. to generate money), it can be challenged and taken away from you. There have been several occasions where I had to either gently inform (or more strongly threaten in some cases) other small companies who were doing things that infringed. In some cases, they were very minor and non-threatening. If, however, I let those situations pass without taking any action that could later be used against me by someone like Hasbro.

I'm not totally jaded about trademarks, just a lot more realistic these days in what kind of protection I can realistically expect under the prevailing trademark laws. (And, in my layman's opinion, the problem could be fixed quite easily by establishing more options for the legal system to include punitive damages as part of the process.)

10:57 AM  
Anonymous Make said...

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6:25 PM  

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