Unregistered Rights in a Game Title: US Common Law and Disputes with Former Partners

In the US, rights in a game's name can arise in two ways:

• First: an application to the trademark office and an entry on the federal register.
• Second: if you sell a game under a name, you acquire rights through use, known as common law rights. They are weaker than a registration, but they are often enough to defeat someone else's application for your own title.

Sometimes a former partner, employee or co-creator decides the name was their idea and registers it for themselves. Below: how unregistered rights work, one real dispute, and what to do once someone has filed for your title.

Two systems of protection in the US: registration and use

In most countries a trademark is protected once it is registered. In the US the system works differently: federal registration exists alongside rights that arise from use of the mark in commerce itself. The USPTO warns that if your use does not cover the whole country, you may only be able to enforce those rights in the areas where you use the mark.

Unregistered names are protected by the federal trademark statute, the Lanham Act. Its Section 43(a) gives a cause of action against anyone who uses a word, name or symbol in a way likely to confuse buyers about the source of goods. No registration is required to bring that claim.

A registration gives you more. Once the mark registers, filing the application counts as constructive use of the mark and confers nationwide priority. The statute lists three exceptions, and every defense without a registration rests on the first: that priority does not run against someone who used the mark before the filing date and has not abandoned it. The other two cover parties who filed their own US or foreign application earlier.

Prior use also counts at the registration stage. The statute bars registration of a mark that resembles one "previously used in the United States by another and not abandoned." In practice the examiner checks the application against the register, so the USPTO usually learns about unregistered use from the owner, when they file an opposition. Oppositions and cancellations brought by a party without a registration are built on that provision; in court, the same party relies on Section 43(a).

WorldBox: how a developer defended his title without a registration

This case is from our practice, and our client has told the story himself on Reddit. An indie developer had been building the god-simulator sandbox WorldBox since 2012. On 10 October 2018 the game launched on Google Play, and by the time the dispute was decided it had passed 10 million downloads. He had no trademark.

In 2019, at a conference, a man approached him offering to buy the game and then kept coming back with new offers for months. The developer said no each time. It later emerged that Stavrio Ltd, a company linked to that buyer, had filed applications for the WorldBox name in many countries, including the US, and had released a Google Play clone called God Simulator.

Stavrio's US application was filed on 29 September 2020 on an intent-to-use basis, with no actual sales behind it. The developer filed his own application on 20 October 2020, three weeks later. On filing dates alone, Stavrio would have had priority. On 9 April 2021 the developer filed an opposition with the USPTO's Trademark Trial and Appeal Board (TTAB), based on prior use of the name for games.

On 8 February 2023 the TTAB sustained the opposition. The Board accepted the developer's testimony that the game had been available on Google Play since October 2018 and found that he had priority: Stavrio's filing date came after his actual use. The marks were identical and the goods closely related, so the Board found confusion likely. Registration was refused and Stavrio's application went abandoned.

One detail from the decision will be useful to anyone facing a similar dispute. The Board did not consider the developer's claim that Stavrio had defrauded the USPTO by claiming to own the mark. The statute lets someone file an intent-to-use application without owning the mark, so the argument that the applicant lied about ownership had no basis. What decided the case was priority, backed by evidence.

There were several fronts, and the US was the hardest. We challenged that buyer's filings in Australia, Korea and China, and everywhere we proved the same thing: the game existed, it was popular, and people were playing it long before anyone else filed.

These disputes are harder than an ordinary opposition. When you hold a registration, you show the number and the date and the conversation is short. Without one, every date has to be proved: when the game appeared in the store, how many players it had, where it was written about. WorldBox won because the game was popular and the developer had the resources for a long fight. Many studios do not, which is why we advise registering a title early.
— Futura Digital's assessment

What to do if someone has filed for your title

The playbook is much the same whoever is behind the application: a bad-faith competitor, a former partner, or a company that came up with the same name on its own.

_{STEP 1 — Take the application apart}

Look it up in the register and note the filing date, the filing basis (actual use or intent to use), the classes and the list of goods, and its current stage. The stage determines the tool: before registration you file an opposition, after registration a petition to cancel. The USPTO, EUIPO and most national registers are public, but similarity across classes and wording is best assessed with a trademark attorney.

_{STEP 2 — Gather evidence of use}

You need to show the name was in use before the other party's filing date and has been used continuously. What typically goes in:

• Offers for sale: the game's pages on Steam, the App Store and Google Play with publication dates, price and release history
• The game's website and social accounts with dated posts
• Player reviews, press coverage, streams and videos that mention the title
• Advertising and marketing materials
• Statistics: players and downloads by country, how long people keep playing (your own analytics plus third-party services such as AppMagic)

In WorldBox, the case was carried by the developer's written testimony, printouts of web pages and the Google Play download figures. In the US, geography matters: rights through use apply where you actually have players and sales.

_{STEP 3 — Make the opposition deadline}

Once an application is published, third parties get a window to object. In the US it is 30 days from publication; on written request it is extended by another 30 days, and further extensions are granted for good cause. In the EU, an opposition against an EU trade mark application must be filed within three months of publication. Windows are easy to miss, so filings for your title are worth monitoring continuously; a yearly check is not enough.

_{STEP 4 — If the mark is already registered, seek cancellation}

In the US, a petition to cancel based on prior use and likelihood of confusion can be filed within five years of registration. After that the grounds narrow, for example to cases where the mark has become generic, has been abandoned, or was obtained fraudulently. In the EU, a mark is declared invalid if the applicant acted in bad faith when filing, or on the basis of an earlier right in an unregistered sign. Watch the clock from the other side as well: the owner of an earlier right who has acquiesced for five successive years in the use of a later EU mark while aware of it loses the right to challenge it on that basis, unless the later mark was applied for in bad faith.

_{STEP 5 — File your own application}

An opposition removes the other party's application, but it does not give you a registration. File your own in the same key markets, so the next dispute starts with your number on the register. A registered mark also makes it easier to deal with infringers on platforms: clones, unofficial mods and cheats.

If the game is already on the market and someone has filed for a similar name, the main tool is an opposition. It runs on offers for sale, store pages, reviews that show the name is known, advertising, and statistics on players in that market. A live game usually has all of this already; the task is to assemble it before the deadline runs out.
— Futura Digital's assessment

Protection without a trademark in Europe and China

The EU has no EU-wide right in an unregistered mark. The EU trade mark regulation lets you oppose an application on the basis of a non-registered mark or other sign used in the course of trade of more than mere local significance, but the right itself is assessed under the law of a specific member state. In Germany, for instance, a mark is protected without registration once it has acquired recognition among the relevant public, and titles of works (Werktitel) are protected separately. Proving that recognition is considerably harder than proving use in the US.

For disputes with partners, the EU regulation has a useful provision. The owner of a mark can oppose an application that its agent or representative has filed in their own name without consent. It is aimed at distributors and representatives the owner had a contractual relationship with.

Wordle shows how far outcomes can diverge. Josh Wardle created the game, and The New York Times bought it in early 2022. On 1 February 2022 both the newspaper and German puzzle maker Stefan Heine filed applications that gave WORDLE protection in Germany. The Hamburg Regional Court held that same-day applications have equal seniority and that the Times had not proved Heine acted in bad faith. In May 2026 the Hamburg Court of Appeal, according to a published summary, also denied the Times priority: before 1 February 2022 the game was free and had no commercial aim, so its title was not protected as a work title. In the UK, the IPO invalidated Heine's international registration covering the UK: the Times won on the basis of its earlier unregistered sign and the applicant's bad faith, without a UK trade mark of its own. In UK law, an unregistered sign is protected through passing off.

China follows first-to-file. Prior use helps there only in narrow cases, where you can prove the mark was already in use in China and had gained a reputation there. If China matters for your game, file early, including in Chinese translation or transliteration.

Prevention: put the mark in the company's name and sign the right contracts

The fastest way to shut down a partner dispute is to register the mark to the company. If the brand belongs to the legal entity, a partner can no longer register it to themselves personally. We covered timing in Trademark Registration for a Game: When to File. If instead the claim comes from the owner of someone else's brand that appears in your game, that is a different issue, covered in Real Brands and Cars in Games.

Contracts are the second line of defense. Practice shows that without them, a court will reconstruct who created and paid for what from indirect evidence. What to put in writing in your agreements with partners and employees and, if a co-creator came up with the name, in your creator agreement:

• Assignment to the company of rights in the name, the logo and any trademark applications filed in connection with the project
• An undertaking not to file for the name or similar signs personally and not to challenge the company's marks
• A specific list of signs, territories and a time limit for the restrictions
• A procedure for transferring the mark if someone files for it anyway

The governing law matters. In Russia, in our assessment, an undertaking not to register the name personally is likely to prove ineffective. The law treats a person's waiver of legal capacity and transactions aimed at restricting it as void, and Russian courts are conservative on these questions. A broad "never register anywhere" undertaking is unlikely to be enforced there. In the US, a specific undertaking stands a noticeably better chance of being enforced, but there too it needs limits on territory and time.

The broader the undertaking, the more likely it is to be struck down. A commitment not to register specific names in specific countries for a limited period works better, especially when it is tied to a clear exchange: equity in the project, payment, an employment contract. A contract, though, is insurance for when a dispute happens. Registering the mark to the company before release removes the reason for the dispute.
— Futura Digital's assessment

In short

If your game is already selling and you have no trademark, you still have rights in the name, especially in the US. You have to be able to prove them: collect dated store pages, statistics and press coverage, watch for third-party filings and oppose on time. Outside the US those rights are weaker, so for key markets trademark registration in the company's name remains the most reliable option.

We handle oppositions and game-title disputes across jurisdictions and help studios set up intellectual property protection before release. If someone has already filed for your title, bring us the application number and we will tell you what can be done and by when.