Trademark Registration for a Game: When to File

A trademark is any identifier a player recognizes your product by: the name itself, the logo, a distinctive character, a signature interface element. And it is protected only after registration: until a country's patent office enters the mark in the register, it legally isn't yours.

The question is almost always the same: register right away or wait. The answer depends on how far along the game is and whether the name has acquired commercial value. Below is how game-industry lawyers reason about it, and three stories that show the cost of getting it wrong.

When to file a trademark application: too early wastes money, too late and the mark is taken

Early in development, registering a mark usually makes no sense. At a young studio everything is still changing: the concept, the art, the game's name, sometimes the team's own name and which legal entity the intellectual property is assigned to. Register a mark on an early prototype and you'll most likely rework it later, with the fees already spent for nothing.

The sensible moment arrives once you've settled on the name, the mechanics and the visual style and you understand you'll ship the game in exactly this form. It makes sense to register before the public announcement: it is with the announcement that the name gains commercial value — and the very risk that someone will see it and register it for themselves before you do.

What to do if you've "fallen in love" with a name: check it. It happens that marketing is already running around a great name while on the markets that matter to you it has long been taken. Then you're left either negotiating a buyout for serious money, or taking the risk. Checking before the announcement costs incomparably less.

The Day Before: a game that never launched because of its name

The studio Fntastic announced its game while the name was free in the registers, and went into development. While development was underway, the Korean entrepreneur Lee Sun Jae — owner of a calendar app of the same name, which had existed since 2010 and racked up tens of millions of downloads — filed a US application for that name in May 2021 and obtained registration on 1 November 2022. The mark was filed in class 09, and that class covers both calendar software and downloadable computer games. In January 2023 Steam pulled the game's page over an infringement claim. Arguing over the registration class didn't work: the mark covered games too. Complaints against YouTube videos using the game's name followed. The dispute was only settled by November 2023, and the game launched in Steam early access on 7 December — under a storm of criticism. Four days later Fntastic and its publisher Mytona announced the studio's closure: the project had failed financially. The name cost the game almost a year of being blocked on Steam — and a release that essentially never happened.

The lesson practice gives: before launch, a name has to be checked not only for an exact match but for similarity, and always across classes, including the games class.

Iron Maiden vs Ion Maiden

A trademark protects not only an exact match but similarity to the point of confusion. And it sometimes works where you don't expect it: categories that look unrelated can in fact overlap.

The game Ion Maiden by studio 3D Realms got a name resembling that of the rock band Iron Maiden. In May 2019 the band filed a 2 million dollar lawsuit, seeing in the name a confusing similarity — down to a similar font and a skull mascot. 3D Realms chose not to litigate: in July 2019 the studio renamed the game Ion Fury and released it under the new name. A name merely resembling someone else's brand, in an overlapping category, cost the studio a name change almost on the eve of release.

Five years for your own name

Another story — from our practice; the client has spoken about it publicly. A studio launched a game and turned down a partner who came knocking. In response, that party registered a trademark on the game's name at once in roughly ten countries: the US, the European Union, Russia, China, Korea, Australia and others. The aim — to apply pressure and either force the studio into a partnership or push the game off the market: when someone else holds the mark on a name, the game can be pulled from platforms through complaints.

They fought back in every country for more than five years. What helped was that the game was popular and grew more popular year over year, and the studio had the resources for the fight. By our estimate, unwinding all of it took roughly ten times more resources than registering the marks themselves at the start would have cost.

Territoriality: registration isn't the end of it

Three things worth keeping in mind about the mechanism itself:

• A mark is territorial. You can't register a trademark worldwide at once, the way copyright essentially works. Each country has its own registration and its own fees.

• The Madrid System simplifies but doesn't remove the cost. Through a single international application you can cover many countries in one procedure, but you still pay a fee for each country you select.

• Registration isn't the final point. Marks have to be renewed, notifications and possible oppositions watched, patent fees paid. All of this has to be monitored, or the right can be lost — for example, by failing to file a renewal on time.

It is for exactly this task — not missing deadlines and keeping alerts in one place — that Futura built an internal intellectual-property monitoring system: it tracks patent-office databases, catches similar marks filed by others, and flags where the analytics say it's time to register (for instance, if a new market has become a priority for the game). The system is now running in live mode — leave a request to try it on your own product.

What to do about it

In short: check the name before the public announcement, register the mark once you've settled on the name and style, and don't forget territoriality — on your key markets you need the mark separately.

By default we advise studios a starter set of three positions: the jurisdiction where the studio itself sits and contracts are signed; the main revenue market — for most that's the US and/or the EU; and a market with a high squatting risk — for mobile games that's above all China, where the "first to file" principle applies. We bring in the Madrid System when there are three or more markets and the base application is stable: by total fees it's cheaper than national filings. But for its first five years Madrid has a dependency on the base application — if that's challenged and falls, the whole international registration collapses.
— Gennady Kurdiumov, Co-Founder FUTURA Digital

If you need a breakdown for your game and markets, come to us: we'll advise what to register, and where, first.