Dead Title?
guildofblades:
On this topic, let's put it another way.
GOB Publishing has produced and marketed a couple dozen "Axis & Allies" variants, a "Titan Variant" and expansions, a "Talisman" variant and expansions and a couple of "Risk" variants in the past. We were initially challenged by the owners of those brands on everything except the Titan variant. And knowing we had the legal right based on the manner we were doing are marketing, we stood our ground and told those companies to eat sawdust and essentially dared them to sue us.
However, in this case, there simply is no legal leg to stand on. With the product in question, since it hasn't been published and I would guess, it hasn't been marketed in any meaningful way, then there has never been a trademark claim on the name yet. Not legally. Meaning, you haven't conducted trade yet with that trademark nor ever published a claim to the trademark. So legally, you simply have no claim.
Your only shot to use the name and to do so without risking a legal battle, would be to contact EA and get their permission. And clearly, if they intend to give permission, you'll want it in writing.
Now, alternatively, if you wanted to modify your name and to narrow the scope of your trademark, then you could call your game "Dead Space Roleplaying" or something like that. Basically, incorporate additional information directly into the title and the trademark. That intentional narrowing of the target and the extension of the trademark text *might* constitute enough of a variance so that your trademark would not actually conflict with the EA games trademark. It would be one of those borderline issues and if you could prove your prior art and prior use of the trademark in association with that art, it just might be something you could successfully defend in court. If you opted to go this route, I would advise two course of actions ASAP.
1) The first is, generate an informal pre order system for your game via e-mail or web form, put that offer onto a flier and make sure to date that flier, print some quantity out and distribute it through the flier table at a handful of conventions. Make sure to stake your trademark claim on the full extended title of the game on the flier. Keep a few copies for yourself and the reciept that you get from the company that does the flier printing/copying.
2) If or when EA comes knocking on your door, you will need a pre thought and detailed plan on how to address them and prepare for your defense. Your best defense in this regard will be the media, or more appropriately, the threat of the media. EA is a large company and being public, any legal action they might want to take they know will generate some press. They will have to weigh the value of attaining a win in that legal engagement against any potential PR hit they might take for pursuing it. As shutting you down won't gain them anything and if you have a detailed plan on how you can make a great deal of noise to the press should they opt to sue you, and you can communicate that plan and that ability to them in a non antagonizing manner when they come at you with the initial cease and desist, they might very well opt not to sue you even if they want to. For us small companies vs large public corporations, the fact that messy bad press can cause a hit to their stock value, is our single best defensive tool. They have lawyers, we have the press. At the very least, if presented with this situation, your PR plan and your ability to communicate how that PR plan would be bad for them, can win you a seat at the negotiating table where you and they can discuss your mutual concerns. That's a scenario where you might sign off on an agreement limited your usage of the trademark to your game and its expansions, and where they sign off on their intent to take no action in regards to your use of the mark.
But...I think it will be a great deal less hassle for you yo simply change the name. Its not printed yet, so you're losing nothing but your emotional attachment to the existing name.
Ryan S. Johnson
Guild of Blades Retail Group - http://www.guildofblades.com/retailgroup.php
Guild of Blades Publishing Group - http://www.guildofblades.com
1483 Online - http://www.1483online.com
greyorm:
Thanks for the advice, everyone. I am considering it all and trying to feel out the various options. If anyone else has something to add, please do so. Also, if anyone knows of a person who would be a good individual to contact inside EA, please let me know (don't contact them for me; please just pass me the information).
rafael:
I'd google the words dead space interview, and see what names pop up. Then I'd google (or search LinkedIn for) some of those names. You might just find a producer or director who can help you out.
-- Rafael
greyorm:
Quote from: rafael on May 10, 2008, 05:15:33 AM
I'd google the words dead space interview, and see what names pop up. Then I'd google (or search LinkedIn for) some of those names. You might just find a producer or director who can help you out.
Excellent idea, thanks!
As an update: I'm a little less concerned (though not unconcerned, by any means) about possibly being stomped by EA, given a search has turned up a a couple of movies, a music album, and a fiction anthology with the same title. I may still wing them a courteous letter about the similarities and prior title usage, different target audience, and the use of a disclaimer. I recall Games Workshop was reasonable with John Wick when he put out Orkworld, despite Ork being "their word".
Larry L.:
Raven,
Can I refer you to Chris Loizou's experience with the game now known as Cursed Empire? (Refer to Post 8.)
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