Advice on possibly name copyright issues
April 23, 2012 3:28 PM   Subscribe

Could an outdated web comic conflict with our upcoming iPhone game?

YANML. We are in pre-production for our iPhone game and we have decided on the perfect name that captures it precisely. There are no competing apps with same name nor a concept similar.

Whilst doing our due diligence, we found an old web comic dated 2009 that features a character with the same name as our protagonist/app name (- the app name is linked with the character's job role.) Their character has only been drawn a few times and was last updated 2009. They also recently released a shirt featuring their character late 2011. A google search for this name only brings up two pages referring to this character.

Could this be a potential issue or opportunity for the artist to file claims of copyright even though they exist in separate fields? Would it be worthwhile filing trademark / copyrights even though their character existed before ours?
posted by SRMorris to Law & Government (2 answers total) 1 user marked this as a favorite
Names can't be copyrighted....they can only be trademarked.

Do a trademark search. The USPTO runs a search engine called TESS to facilitate that.

This of course is no guarantee that you won't be sued...people sue all the time to spur settlement talks. But it would help you win a case.
posted by inturnaround at 4:16 PM on April 23, 2012

What you're looking at is trademark, not copyright. If you're going to be releasing a product for sale and you're worried about possible trademark infringement, it's imperative that you talk to a trademark lawyer and not rely on MeFi. I understand the cost might be ridiculous, but they can go over the specifics with you (like the exact details it's not prudent to share here), and they know your local laws.

Also, they should be doing the due diligence, not you. Wikipedia says: In the United States, the USPTO maintains a database of registered trademarks. The database is open to the public; however a licensed attorney may be required to interpret the search results. Furthermore as trademarks are governed by federal law, state law, and common law, a thorough search as to the availability of a mark is very important. In the United States, obtaining a trademark search and relying upon the results of an opinion issued by an attorney may insulate a trademark user from being required to pay treble damages and attorney's fees in a trademark infringement case as it demonstrates that the trademark user performed due diligence and was using the mark in good faith.

It's my opinion that if it's a small enough outfit, the name isn't well known or universally associated with their character/comic (common law trademark) AND they haven't registered a trademark for the name, you'll most likely be okay. Trademark law often seems to be about who has the resources to pursue and maintain a legal case. But don't take my word for it. IANAL.
posted by i feel possessed at 5:06 PM on April 23, 2012

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