(Eric Hanuise and I have tried since September to get this published amongst the Boardgamegeek designer diaries, with Eric even posting it in a waiting queue in correct format, without success. We are both puzzled about why we've been completely ignored. So we've finally decided to post it elsewhere. LEP)
Names of games are important to help a potential buyer understand what the game is about, and to invoke certain emotions or points of view that may help persuade the customer to buy the game. For example, “Dragon Rage” tells you a lot about that game. Yet the trend in Eurostyle boardgames for a while was that names told you absolutely nothing about the game: Carcassonne, San Juan, St. Petersburg, Puerto Rico, those titles tell you absolutely nothing.
Perhaps such uninformative titles are selected because most of the good game titles have already been used. It may also be because many Eurostyle games are not models of any reality and so there is no reality to refer to, that is, they are essentially abstract games and so the title may as well be abstractly meaningless.
The book industry faces the same title-already-used problem, and one of the ways they get around it is also used in the game industry. You give your game or book a subtitle. For example when I finished my first book about game design my final title choice was “Learning Game Design”, which was quite descriptive. But the publisher wanted something that sounded more scholarly. I’ve described elsewhere (http://pulsiphergamedesign.blogspot.com/2012/07/choosing-title-for-game-design-book.html ) all the steps we went through before we settled on the title “Game Design: How to Create Video and Tabletop Games, Start to Finish”. The subtitle was necessary to differentiate it from other books with “game design” in the title.
This subtitle technique is also used for video games that are sequels or related to existing games but where the publisher does not want to use a number. For example we have Assassins Creed III to show that it’s clearly related in a sequence from the original Assassins Creed, but we also have Assassins Creed: Liberation for the Sony Vita handheld. Expansions to existing video games are often given subtitles so we have Civilization IV: Warlords and Civilization IV: Beyond the Sword.
On the other hand, book titles are not trademarked, and game titles are, so the legal situation is somewhat different as we’ll see. So far I’ve been talking about marketing, really, but the rest of this piece is about legal considerations.
What brought this to mind recently was the appearance of a video game for Android devices titled “Dragon Rage”. From the marketing video, it appears to be an Angry Birds/Crush the Castle kind of game. As many readers know I had a game of that title published as a “micro game” by Heritage/Dwarfstar Games in 1982, which was reissued with additions and a much, much higher physical quality by Flatlined Games (Belgium) in 2011, though it didn’t become available through American retailers until 2012. In the 20 year period while I was away from the hobby a PlayStation 2 video game titled “Dragon Rage” was published by 3DO in 2001 and 2002. With the 2011 version of the board game I once again had the “common law” trademark on the game title “Dragon Rage.”
What was I going to do about this? At a minimum I didn’t want people to buy this video game thinking it is a video version of my boardgame. Nor did I want people to buy my boardgame thinking it is a boardgame version of this video game. You might say “who cares, they’ve bought your game” but then you end up with very unhappy customers and no one wants unhappy customers.
Trademarks have to be enforced. If they’re not they can come into public use, and that’s why the makers of Scrabble have always been high strung about enforcing their trademark. From my point of view I did not think I could ignore the existence of this video game, though the publisher of Dragon Rage was not concerned at all.
Now I don’t pretend to be a lawyer and cannot give legal advice. Nonetheless, it’s not hard to read information about copyright and trademark, and I’ll give you a little bit of a run down.
Game titles are generally protected by trademark rather than copyright. Copyright is intended to protect larger strings of text than one or two or a few words that make up most titles. While copyright law tends to be the same from country to country because of the Berne Copyright Convention, trademark law can vary much more so I’m talking only about the United States.
There are two levels of trademark protection in the United States. The simple “common law” protection is to claim trademark by putting the trademark symbol, a simple superscript “TM,” after the title to be trademarked, as in Britannia™. In the case of games, the game has to actually be on the market, you can’t trademark something that isn’t (yet) a commercial product. The more secure protection is to register the trademark, for which the symbol is an R in a circle ®. The simple trademark costs no money, the registered trademark is officially $350 or more, though I have seen Trademarkia offer to register trademarks for $159.
Trademark does not lapse the way copyright does - although it takes a very long time for copyright to lapse nowadays compared with the rules 40 years ago. We can see a few cases where trademarks continue to be claimed on characters in novels that are well out of copyright, such as Edgar Rice Burroughs’ pre-1923 novels. His John Carter novels on which the movie “John Carter” is based are out of copyright but “John Carter” and other related terms are still maintained as trademarks, and so the makers of the movie had to work with Edgar Rice Burroughs Incorporated even though the author died more than 60 years ago! (See http://www.uspto.gov/trademarks/index.jsp to find a search engine for trademarks. The ERB Inc. “Barsoom” trademark is listed in detail at http://tsdr.uspto.gov/#caseNumber=85569566&caseType=SERIAL_NO&searchType=statusSearch .)
Trademark law allows for the same word or phrase to be trademarked in many different areas of life as long as there is no likelihood of confusion. For example there is Britannia the boardgame and there is a building society (more or less a savings and loan) in England called Britannia, both can be trademarked. There are other uses of Britannia (such as the name of a world-setting in the video game Ultima) that probably don’t infringe on either trademark. Apple Records and Apple Computer were content with the same name until recently when Apple Computer began to sell music through iTunes, and then there was legal action (since settled).
A game called “Story Realms” throughout its funding via Kickstarter suffered a name change when a company that owns storyrealm.com sent a cease and desist letter. http://boardgamegeek.com/thread/916218/picking-a-name-for-your-game-heres-something-you-m :