Taking a trade mark on your brand is part of the advertising process to protect your brand from competitors.
A quick and dirty way of diverting traffic from a competitor is to purchase their name or brand as an AdWord and enjoy the traffic rolling towards your own business.
This is of course not news in the internet game but worth considering given that the problem is reoccurring.  The ways in which third parties use third party brands as keywords will continue to evolve.
There are many interesting legal issues to ponder in connection with challenging third party use.  Is the AdWord use of a trade mark for the purposes of registered trade mark infringement?  Is this use in the course of trade?
If a cause of action exists, traders should certainly consider making demand on the advertisers setting out the claims and making demand to cease further use.  However, where possible, the quickest and cheapest resolution may be to make a complaint to Google.
Google’s present policy is to make available competitors’ trade marks as AdWords worldwide, unless a complaint is received.
In some situations Google will investigate the trade mark and its use before making a determination to remove the trade mark as ‘ad text’ or ‘keyword’.  However, Google has different policies depending on where the trade mark owner is based.
Google will not prevent the selection of trade marks as keywords.  Limited investigation as to whether a keyword (in combination with particular ad text) is confusing as to the origin of the advertised goods and services eg ad falsely implies affiliation with the trade mark owner. Fortunately for Australian trade mark owners,  Google will currently investigate and possibly remove registered trade marks used by a third party in both its keywords and ad text. This entry was posted in industry news & trends, interesting observations, marketing process optimisation and tagged advertising process, Darren Woolley, google adwords, marketing process optimisation, registered trademarks, strategic marketing consulting, strategic marketing management, trade mark, TrinityP3. You have your business up and running and you have an awesome logo to give your business an identity. Logos may clearly represent your company or your business by using graphics and words, but if you don’t trademark it, other people can produce similar logos that can be extremely confusing for consumers. You can hire a trademark attorney if you want a guiding hand as you go through each step of the trademark application process. The first actual step in applying for a trademark for your logo is to search existing trademark logos to determine if there is already an existing one that is similar to yours. While you can secure rights to your logo just by putting it in your products or materials that are connected to your services, it will only secure the rights for you in the specific geographic areas where you provide your services or products.
Keep in mind that there are processing fees involved if you are filing your application with the USPTO.
If you are not confident enough that you can do this alone, you can hire trademark attorneys or legal services such as LegalZoom to help you through the process. The summary: In our hobby game market it is not worth the hassle, money, and time to attempt to protect your game, mechanics, or IP beyond some simple free and automatic methods. First, I am not a lawyer and this is not legal advice – but I did have a lawyer, a CPA, a CFO, a small business consultant, and an MBA look this post over and I am giving you business advice. General Partnership: This is a way to run a small business with a few partners and not worry about shares and company upkeep.
Limited Liability Partnership (LLP): This is essentially a general partnership in form, with one important difference. Limited Liability Company (LLC): An LLC is a low maintenance and reasonably cheap way to setup a business to separate you from some of the liability (risk and financial) but it is still not a corporation.
Corporation (S-Type and C-Type): These are full company entities with stocks and share holders.
As mentioned above, the type of business or company you form has a baring on how you must pay your taxes. With a corporation you can book a liability for the unpaid printer bill and that should help offset the income from Kickstarter.
Most all states have sales tax and you are responsible to pay sales tax when you sell to someone in your own state (even if you sold something online to them). When attending conventions, some states require you to file for a temporary business license or at least some form of paperwork to allow you to pay the local sales taxes for your sales at the convention. These concepts can be confusing but there are very specific places to make use of each type of protection. It is possible to protect a game’s ideas when presenting them to potential publishers, but the methods used (like an NDA) turn away most publishers. If you make a new version of a game that seems legal in every way, it will not stop a lawyer from sending you a Cease and Desist (C&D) letter. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. If you do not wish to share your work publicly at this time, you may wish to spend the $35 or so to get a copy registered online at Copyright.gov. Copyright lasts 70 years after the creator’s death (make sure you specify beneficiaries in your will) or can live forever under the ownership of a company. The (TM) symbol implies the use of something as a trademark but has not officially been applied for. Trademark rights generally arise out of the exclusive use of that sign in relation to certain products or services, assuming there are no other trademark objections.
Registered Trademark lasts 10 years from the registration or as long as you use and defend it. Titles cannot be protected by copyright, only trademarked in the way a title is graphically represented. Using another companies name or logo as long as it property includes their (TM) or (R) is legal under Fair Use laws. Creative Commons is a legal agreement which provides a designer or artist to license work to the general public while choosing which rights they desire to keep. I wrote up an earlier blog about what to expect as a designer to be in a contract and how to deal with them. In the below blog entry I will try to take the Publishers prospective on those legal documents. You will want to have similar but slightly different contracts for dealing with your Designer, Editor, Artist, and Graphic Designer. Grant of Rights physical and electronic– covers the ownership of the game when printed in on cardboard but also specifies what happens in the case of an electronic version of the game.
Statements & Payments– Indicates when regular reporting and payments are to be made per the rest of the contract and what happens when those dates are missed or if there is a question of the integrity of those numbers. Advances, Royalties & Copies– specifies how many free copies are given to the developer and what royalty rate they are paid as well as any advances and how they are applied. Copyright & Rights– Who owns the rights during publication and after the game has been retired. Termination & Bankruptcy– Defines the exit strategy for both parties and what might cause a breach in the contract.
Revisions & Derivatives– Defines if the designer retains first rights of refusal for expansions. Assignment– Specifies what happens to the game if the Publisher is purchased by another company. Governing Law & Location of Dispute Resolution– If there is ever a problem, what laws govern the actions that can take place and where (what state, country) do people have to file claims.
When working with artist contracts make sure you specify the full first rights to the artwork.
If you’re already distributed world wide, then it is best to structure the license agreement by language as you already have exposure in English overseas. About 3-6% of MSRP or 8-12% of the wholesale receipts would be a typical rate to expect from such an agreement.
Remember when you’re dealing with a License with someone not in the same country that any legal follow will be extremely hard and costly, so only get into bed with people you can trust and have done research on.
The licensee (new publisher) normally will be responsible for setting up their own printer and paying all the bills to getting the game translated and printed.


This is a document that has the aim to keep people from talking about your game without your permission. There are a few publishers that may have you sign an NDA once they accept your project, but it is rare. Kickstarter has been trying it’s best to walk the thin line of not having any responsibility yet attempting to put more pressure on you, the project creators, to be liable for delivering a finished product. Printing in the USA is expensive and in most cases not even an option if you want your game reasonably priced. There are many forms of shipping and some of them leave the liability on your shoulders if things get damaged on the trip over to the USA. China is also known for printing rip off versions of games that are successful, so choosing the right partner is important. Your game box will need to have markings that indicate that it is safe for a certain age group.
Note, it is not as simple as just saying your product is intended for an audience 13 years and older. You can request your manufacturer to submit the sample of your game for product testing but make sure you get some paper trail on that. To sell in the EU you will need to put the CE symbol on your box with an EU contact address.
Many other countries have their own safety standard regulations, but the EU and USA have about the strongest. Thanks for this article, it is truly a wonderful resource to the inexperienced like myself. Gavari is now officially registered as Trademark at the Office for Harmonization in the Internal Market! But in this guest post from the team at 1Place Patent Attorneys & Solicitors, it appears your trademark may not completely protect you from competitors using your trade mark as a Google AdWord, unless you are willing to defend it. Your brand is being used as an AdWord by a third party trader and entering this as a search term triggers a sponsored link. If we find that it is confusing, we will remove the specific ad that is the subject of the complaint. A Problem Solver, Negotiator, Founder & Global CEO of TrinityP3 - Marketing Management Consultants, founding member of the Marketing FIRST Forum and Author.
LogoMyWay has over 15,000 logo designers from all over the world ready to work on your logo. It’s time to put that logo on your website, printed materials and your products, right?
This can hurt your brand’s identity as it can get lost in a sea of similarly designed logos. You can do this if you have the budget for it but if you don’t have the money for this kind of deal, you can do it on your own. If there is, you have no choice but to redesign your logo or risk getting into legal trouble. If you want to have a blanket protection for your logo in an entire state or in the whole country, you will need to apply for a trademark. So it’s possible for you to be on the receiving end of being bullied and you may find it not worth the effort and money needed to fight it. Let me be clear that most of this advice is from the point of view of a US citizen & company and relates to US law.
Unlike a general partnership, in which individual partners are liable for the partnership’s debts and obligations, an LLP provides each of its individual partners protection against personal liability for certain partnership liabilities. It’s also a simple way to get partners (and investors) to share in ownership (and profits) in your company.
Under a corporation you can also use different forms of approved accounting practices as well as set your Fiscal Year (FY) end to something other then the end of the calendar year. You will have to file tax forms for that state and they’ll want to know if you have any inventory stored in that state as well so they can tax you on that. Well to be more strictly accurate, they can be, but they must be done so in such a specific method that only the exact representation of your work would be protected (a clone). Copyright protects only the particular (and specific) manner of an author’s expression in literary, artistic, sculpture, or musical form. The benefit of registering is that it creates a definitive time-line and presumption that ownership of the copyright is as set forth in the registration.
The manual can be copyright but if someone re-wrote your manual in their own words explaining how to play your game (not using any of your art of course), that is not copyright infringement and is perfectly legal.
Thematic elements of games can be trademarks such as: character names or even fictional tech terms. The (R) is a symbol that provides notice that the preceding word or symbol is a trademark or service mark that has been registered with a national trademark office. Trademark rights are theoretically indefinite, but will terminate if the mark is sufficiently diluted by someone else’s uses of it. For example, Cthulhu is in the public domain (as are most of Lovecraft’s works, but not all) which is why we see a lot of liberal use of that in the hobby game industry. For instance, you can say you will allow the public to reproduce your work, but not profit from it or remix it. Most contracts don’t include advances of any significant amount and free copies are usually limited to a dozen or less. Also contains a protection clause that protects the Publisher from copyright infringements they were not aware of.
Usually a designer will be given the first chance to make an expansion or a second edition.
You do not want them selling you second or non-exclusive rights to artwork that can then be reused elsewhere. Typically these specify very specifically where the other publisher is allowed to see the game.
If you don’t have easy access to English in Europe then you might wish to grant by region. Unless you’re very comfortable with the other publisher, it is best to at least get an advance payment equal to the whole price of the total first print run. These can be used with play-testers, designers or with publishers you submit your game too. Almost everything has been done before and chances are very high that you are not holding on to something revolutionary.
It’s already hard enough to find these people willing to give you their time for free to help you out. Even without an NDA, it’s still in your best interest to make sure you ask before you start talking about a game you submitted to a publisher.
As the rules are currently, while you’re accepting donations to help make a game, they expect that game to be made and you to deliver rewards as you stated, or offer a refund. They have different copyright laws and may not even be breaking any local laws as they steal your products.
The totality of the product, its packaging, and its marketing can be considered by a Judge to estimate it’s real intended age group. Some oddities also exist like Australia has some regulations about wood and if your game has a fumigation certificate it can get through customs easier. He is also a Past-Chair of the Australian Marketing Institute, Ex-Medical Scientist and Ex-Creative Director. You also need to take note that applying for a trademark in the US does not protect your trademarked logo in other countries.


You can do this search by hiring a search company that will do an exhaustive search for you or you can do it yourself by going through the records of the U.S. For a statewide protection, you can file your application with the Secretary of State’s office.
It does not have shares and profits and liability are split equally unless another agreement exists.
In an S-Type corporation the earnings of the company are fully disbursed each year base on the ratio of stock you hold.
Most corporations just use a calendar FY and most will just use the cash basis accounting method. This allows you to pay taxes on the prepayment income from Kickstarter after you provide the final product to your customer and thus just on your actual profits. Anyone changing one little aspect of it would not be in violation, though it could go in front of a Judge or Jury to decide (expensive).
In addition, if you registered the copyright on a date earlier than the date of an act of unauthorized copying, or under certain other circumstances set forth in the copyright law, then if you prevail in court against the unauthorized copier, you can be eligible for statutory damages and for recovery of attorney’s fees. Trademarks require you (or a lawyer) to perform due diligence and search databases for possible contentions.
To challenge someone using the same or similar name, they would have to prove that their using of the same name caused brand confusion. Parody is a fine line you can get away with some references under fair use, but you can get yourself into trouble if you’re not careful. Due to their specific nature, patents are incredibly hard to enforce (a major reason why I warn against doing it), especially on derivative works that don’t copy rules verbatim. So if you really feel you must go down this road, at least try doing this and seeing if your game is a hit before continuing farther.
Works published after 1922, but before 1978 are protected for 95 years from the date of publication.
Royalties are typically around 4-6% of the wholesale revenues (what you the publisher receives).
Usually the copyright to a game will revert back to the designer (or their heir) when the company folds or enough time has passed where the game is not being published anymore. Be aware that if you work for a company in the gaming industry and you design your game during your paid lunch hour (or heaven forbid at your desk), that company could own the rights to your game. Most have a duration in which this can occur and some have a specified number of units that may be produced.
Typically these are paid quarterly but it’s not unusual for them to be paid by the print run. You will create an immensely better game if you let as many people as you can freely play it. If you do anything other (like waste the money setting up a company and not making a game) you will have some liability and people can sue you. The problem is if any of them fail to deliver what you expected, it’s extremely hard for you to recover any money.
Wouldn’t hurt to cover your investment in games too if they are sitting in your garage.
Before you unleash your logo upon the world, you have to make sure that you have secured the rights to it. This means if you want to secure the rights to it in other countries, you will have to go through the trademarking process for each country. For a nationwide trademark protection, you need to file the application with the aforementioned USPTO via their Trademark Electronic Application System (TEAS) which contains all the necessary information you need about the required forms for your application.
What is marketable and of value is a finished (working & fun) game prototype, not a concept. This means that you book your income and expenses when they occur and thus your profits at the end of the year are just the difference of all incoming money minus all out going money. But legal battles are costly, and often a C&D is all it takes to get someone to back down. Trademarks are therefore not cheap to obtain and you’ll be required to defend it which is also not cheap. While the actual application for registering a mark is under $300, it’s the fact that you need to pay someone (usually a lawyer) to do a search and the fact that you will need to aggressively protect your mark, that ads a huge amount of costs.
They filed before you and have the legal leg up and fighting these things in court is usually not worth the money.
If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. Also specifies what payments are made on sub-license deals – which is usually the same rate applied to the actual final amount received by the Publisher. On the other hand, from the Publishers point of view a work for hire agreement keeps the rights much more clear as they are all yours and the do not revert back to the original creator. I lost $1000 worth of product do to damage in transit on a ship once and couldn’t do anything about it no mater who I bitched too. Simple material testing can be done on specific parts for a reasonable price, but it can get costly to test the whole product or to do so in an in-depth manner. Most small publishers will not have an EU address to use, though some distributors have offered to help out with that. You can use their Trademark Electronic Search System (TESS), a tool that lets you search for pending and registered trademarks. You can acquire and submit necessary forms for this application via the USPTO website where you can also check the status of your application as well as renew it to keep the registration active. With a C-Type corporation you can only disperse revenues though salary and dividends (based on the ratio of stock you hold) and any money left in the company at the end of the year is taxed at a business rate. So, if you run a Kickstarter late in the year and don’t pay the printer till the next FY you will most likely have to pay taxes on all the Kickstarter earnings as profit.
The best form of protection you have is to make sure you DO share your work in public places so you have references with a date of your use of your work. Trademarks are not cheap so if they filed for one they probably have the money to defend it. It is therefore unwise to name your board game after a movie or some such, as you know those production houses have the money to run you through the ringer. All works produced by the US government (including NASA photos) are public domain and can be used for any purpose. Thus, there really isn’t a lot of liability associated with running a Kickstater as long as you, in good faith, do your best to fulfill the rewards you promised.
You should always request a proof copy even if you have to pay a couple hundred for that moch-up version. Most printers in China know they must meet certain standards to sell to the USA and most achieve that. So at the least you should still include the CE symbol so that customs will not hold on to your product during import. This type of business entity is only used if you’re the only one running the business. If this is all you do for a business, that will greatly harm your personal taxes liability.
By putting the CE symbol on your packaging you are self-verifying that you are following the rules they set forth.




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