Trademark Introduction for Indies

With the on-going Tim Langdell trademarking discussions this seems a good time to post some information about trademarks.

UK lawyer Alex Chapman (Sheridans) represents a number of independent developers and is representing Mobigames in their trademark dispute with Edge Games (*cough* this link is not entirely accurate but was better than linking to the real site!). He has kindly posted some information which should answer many of the common questions people have over trademark uses, rights and registration. Note that this is a UK/EU perspective and laws do vary across territories.

1.  A trade mark is anything that identifies the goods and services of a business or distinguishes them from those of another.

2.  A registered trade mark gives statutory protection and an effective monopoly in respect of that mark for the goods or services it is registered for AND for similar marks with the same or similar goods where there is a likelihood of confusion. Well known registered trade marks have additional protection if used by others for different goods or services to those for which they are registered if that use takes unfair advantage of or is detrimental to the repute of the well known registered mark.

3.  Marks that are not registered have common law protection through passing off – which occurs if a third party uses a trading name, style or get up that misrepresents a connection or association with the owner of goodwill in a business undertaken under or by reference to that trading name, style or get up and in doing so causes damage to the owner. That damage includes lost revenue that it would have received had the “infringer” entered into a licence agreement with the owner.

4.  Certain trade marks can’t be registered and can’t be said to have sufficient goodwill for passing off. These include geographical indications, signs that designate the nature or intended use of the goods or services or are otherwise devoid of distinctive character and incapable of distinguishing the goods and services of one entity from those of another. For example Egg for eggs or Cake for cakes is a NO but Egg for financial services and Cake for PR is a YES.

5.  Marks that are otherwise devoid of distinctive character can however be registered and can have goodwill in them if they become distinctive through the use made of them.

6.  If you don’t use a registered trade mark for a continuing period of 5 years it becomes liable to be revoked.

7.  If you don’t enforce your rights as a trade mark owner and don’t object to someone else’s use of your mark you can be considered to have acquiesced and lose the right to enforce – but this is more complex than it sounds.

8.  You should apply to register your key brands as registered trade marks [contact Alex Chapman directly for more information].

9.  If you threaten someone with a registered trade mark infringement action without good grounds then you can be liable to pay damages for “groundless threats”.

10. It is a criminal offence to say a trade mark is registered when it isn’t.

11. Trade mark registration is territorial though a single European application can be made covering all countries of the EU.

12. Trade Marks are registered in respect of classes of goods and services. There are 45 different classes and when making an application you need to draft an appropriate specification in each class.

13. Making an application also gives 6 months priority in other territories so that additional applications can be made in other territories and back dated in that time.

14. A registration would last 10 years but can be renewed at that time.

15. Trade Mark registration is by far the best way to protect your brand but understanding trade marks is also important so that you don’t infringe someone else’s.

I’d like to thank Alex for his help with this post. Trademark, Patent and Copyright law is a complex business and I suggest that professional queries should be directed to Sheridans or another suitable IP specialist.

If you’re an independent developer then I’m happy to recommend Alex Chapman for your IP queries and Publishing/Distribution contracts (he didn’t pay me to say this but he’s definitely bought me a drink or two in his time!).

Finally, please do mention this blog if contacting Alex or Sheridans – that way we’ll be able to get some more legal advice for indies on here!

I’m not the only one ranting this week. Developers (including myself) from my favourite developer forum, The Chaos Engine, have just issued a statement regarding the Tim Langdell vs Mobigames ‘Edge’ trademark dispute. You can read Develop’s summary of TCE’s press release here. TIGSource have also come out strongly against Tim’s actions and are even collating information on his background.

For those unaware, while Train2Game are dragging TIGA into problems in this case Tim is dragging the IGDA down with him through blatant patent trolling versus an independent developer. Tim is a board member on the IGDA, an organisation who are supposed to fight for developer causes. It’s the second time this year that the IGDA have run into a serious problem involving their own board members, Mike Capps having frustrated the development community with his comments on working hours.

What I find so interesting about what’s happened this week is that the big boys are starting to come up against organised opposition. This is despite being linked to the industry bodies who, in theory, should be the ones throwing their arms in the air (but aren’t, the IGDA in particular). This isn’t a few left wing anonymous students flaming on random forums, we’re talking about increasing numbers of frustrated and annoyed professionals who feel they are being poorly represented.

Even the industry press are starting to wake up, although I do wish the ‘regular’ gaming press would make more of these issues – just mentioning them would be a start. Simon Carless (Gamasutra editor) has had to deal with the very real legal and political issues that have resulted from public comment by Gamasutra. It may be a pain for him but in one sense it’s a good thing, honestly! It’s a sign that the industry press may be growing up and just perhaps we will have some real journalism rather than press releases, reviews, and tutorials.

So will this moral outrage make any difference? I don’t know but I do believe that it’s the right thing to do.

There are risks, however. I’ve had to make some judicious Train2Game edits on this blog, have been warned about discussing certain issues in public, and have also been warned by my lawyer not to get involved with MIS due to their highly litigious nature. Just last night MIS managed to get the T2G-critical DigitalTrend threads removed (plenty of web caches remain, however).

In such cases I’d like to see some proper critical and investigative journalism from our press, and I don’t mean the sort of tabloid stuff we tend to see from the BBC these days (but that’s another story).

EDIT: You can now donate to the Mobigames cause while IGN have also picked up on the story. Wouldn’t it be great if gamers and developers could unite?

I had an interesting phone call this afternoon from Clive Roberts, responsible for Train2Game. I did some work for Clive many years ago so I did half expect this – I was not a random blog author to him.

We had quite an amicable chat. Clive was at pains to point out that the Study Guide is being redeveloped and has asked me to point out that it’s early days for them and that they were just trying to improve course awareness to the public, where as now they plan on touring developers to inform us what the course is all about.

While writing both this and the last blog post, I did read several forums and there’s a lot of spiteful stuff being said. Clive’s take is that particular posters are from a competitor and he says he has given up trying to engage with them as it’s causing more problems than it solves.

My personal take is more complicated. It sounds like at least some MIS (Metropolitan International Schools) staff are possibly being somewhat irresponsible and I believe that TIGA should try to nail any misbehaviour or misrepresentation as a condition of TIGA endorsement. It’s not like those behind MIS hadn’t been in trouble before with SkillsTrain. While a lot of time does seem to have gone into the course content, to partner up with an organisation who have attracted such negative attention does mean that some extra diligence should have taken place over public materials IMHO.

There are also some questions being brought up over who owns and earns from Train2Game. The fact is that someone is probably going to be making money from it, be it Clive Roberts, Jan Telensky, or someone else. I don’t really have an issue with this as long as the course is good and the industry benefits. We live in a capitalist society where people make money, sometimes undeserved, through our education systems. Let’s at least see if Train2Game does what it intends – helps bring forward new talent into the industry.

In addition, however good the distance learning course is and however bad some university game courses are, a diploma based qualification is always going to have to work much harder to prove itself to the professional industry.  It’s with this in mind that it’s such as bad idea to allow the release of materials such as the ones I quoted from.

Clive assures me that the course is good and that those in the industry who have evaluated it have been very positive. He’s offered to visit Tuna to explain it to us and we’ll be taking him up on that offer. In an industry which I find consistently insular and negative, I think it’s only right to give T2G a fair say. I look forward to seeing the course content itself.

I’ve just returned from Develop and I’m in such a stomping rage that I’m actually going to update my blog rather than my Twitter feed.

I better preface the rest of this post by saying that I 100% back the work by the likes of TIGA and Skillset to improve the education of those entering the game industry. However, TIGA’s endorsement of distance learning course Train2Game really bothers me now that I’ve read their “Study Guide” brochure, handed out to us at the Develop conference this week.

I’m going to provide a few tasty quotes for you to get your claws into. They are so jaw-breakingly awful than I almost don’t feel the need to comment on them because others will do a far better job. Before I set on, let me remind you that TIGA’s endorsement is about improving the quality of those entering the industry.

“…, until now, your only way into the business, if you were starting from scratch, would be through academic study on a 2 or 3 year university course, then you have to look for a job as a games tester and then spend the next few years learning the hands-on stuff working your way slowly towards the job you really want.”

That’s funny because the entire point point of all the university game-related courses is to avoid exactly this situation. Some manage it, some don’t, and it still depends on both the graduate and the state of the industry, but the above statement is just absolute rubbish.

“The Train2Game method of learning has been created so that nearly anyone can do it. In fact, this system is so directly geared towards the needs of the games companies that the industry bodies are now recommending to their members that they recruit from Train2Game graduates! They are so keen to have people equipped with just the right skills that we’re confident you’ll go straight from finishing your training to your first job as a developer. You might even find yourself with a choice of opportunities!”

I honestly see this is as straight forward miss-selling of the qualification considering it’s not even a degree equivalent and is a new course. However, I accept that other academic institutions come out with similar trash.

What I particularly object to is the “anyone can do it”. I don’t want “anyone”, I want suitably educated talent. As a developer who wants to see the best graduates, a course which “anyone” can do is not going to inspire confidence. My initial reaction was compounded by something else, which we’ll get to later.

“Why Train2Game? Our courses are aimed at anyone who has a great game idea, but who lacks the opportunity, skills or experience to be able to turn their idea into reality. We are the experts on the ‘inside’ and in unique and interactive ways we will help you pick up everything you’ll need to realise your dream. This is a complete system aimed at ‘ordinary’ people and written by actual game developers!”

Once again, straight forward miss-selling and yet more “anyone” can do it type stuff. Who are these “ordinary” people? Why are they making out that game development is some big secret when more people seem to be doing it than ever?

“Only very basic computing knowledge is needed… some of the concepts can be picked up more rapidly if you do have prior gaming experience, but it is certainly not essential… We have worked hard to demystify this often shrouded topic so that you can achieve the best result possible!”

Ah, I see, it is a big secret! Perhaps Train2Game aren’t aware of t’Internet and the myriad of amazing game development sites and software targeting everything from beginners to experts. That’s not to dis this course, but I object to the blatant and deliberate ignorance of what’s out there. Once again, I take this as a way of targeting people who are probably not going to cut the mustard anyway, and then you have to ask why TIGA are endorsing this course (as Train2Game go on and on and on about).

“Unlike other courses, our courses are written by gamers for gamers. They contain a wealth of invaluable information you are very unlikely to find in an ‘ordinary’ programming and design books.” - Their dodgy grammar, not mine!

At this point I started laughing. Out loud.

By gamers? I thought we were game developers. A quick search on Amazon reveals numerous game development books covering a wide range of content. I believe I’ve already pointed out this t’Internet malarkey but Train2Game seem to conveniently ignore this rather useful resource, except where it suits – they being a distance learning qualification!

“There are no restrictive entry requirements for any of the Train2Game courses… Using the very latest in assessment technologies they will quickly prepare a personalised study plan for you.”

May I suggest, dear reader, that we all submit an application to see what their “latest assessment technology” can do for us?

“In the unlikely event of you failing to pass the examination and provided you have carefully followed the instructions of your tutor, you may retake the course entirely free of charge.”

WOW! Gobsmacked! So basically you can’t fail. If anyone can do the course and anyone can gain a pass, what do I actually learn about my prospective employee/colleague/(tester!)? Ok, yes, I’m aware that universities these days barely fail anyone either although I do at least see lots of grades and can sometimes value the university and course itself.

They will have created some demos on the course which I know is a good thing, but I’m not seeing any suitable confirmation of difficulty or ability in the way the course is being presented.

Perhaps I’m being over harsh but there is an important point here. Regardless of the merits of the course  content, and I want more developers to see it first hand so it can be suitably critiqued, I’m not sure TIGA should be allowing a course they have backed to be promoted in this way. It feels like Train2Game, quite frankly, are taking the piss.

I want good quality graduates to have come from properly approved courses. I want the good people at TIGA and Skillset to ensure that course contents are suitable for our needs and will make a real difference.

TIGA should not allow the Train2Game course to be sold in this way and it should be made clear to the development world at large what this qualification actually means so that we can judge candidates accordingly. The “Study Guide” brochure provided at Develop was not the way to do it.

Train2Game may prove to be a valuable addition to the various game courses in the UK but if it’s industry backed then it should function alongside the existing courses rather than making overblown claims. Meanwhile, I’m sure there are a few university course administrators as unhappy with the Train2Game marketing as I am.

EDIT: So Train2Game, or at least the company administrating it, have just tried to sue Google over Train2Game bad press simply because Google searches show people’s complaints. Thankfully they lost the case but it puts things in a different, darker perspective for me.

I’ve also had feedback already that others in the industry are questioning the merit of both the course itself and all that surrounds it. This is something that needs addressing for the sake of both the students, those who have undoubtedly put some serious time and effort into creating the course, and the development community who must, after all, be on side in order for it to be worthwhile.

Grubby Games have just released My Tribe, their take on the casual sim genre that was lead by the surprise hit Virtual Villagers. I’m a big fan of Grubby’s work, especially the almighty Fizzball, and this game looks like another decent effort with some good reviews appearing.

Still, I’m a little bothered about the space they are in. Two years ago we were working on our own casual ideas. We’d spotted the casual scene before the big publishers but in the end it was too late to enter a market which was becoming very competitive, particularly with cheaply developed but reasonable quality Eastern European content.

Through our own site we offer some of the indie and casual games which we particularly like, but we only opened up our full site with the Cletus Clay announcement. Before going live, we checked out many of the latest casual games and were shocked to find how little had changed in the last 18 months.

The casual scene has always been full of clones, but right now it seems to be as obsessed with object finding games as it was with match 3 titles. The difference now is that there is massive portal competition, especially on price and with numerous subscription schemes. Is it even possible for developers to branch out but still get coverage on the major portals?

Will they be able to generate enough revenue from games which need to gain traction in order to be accepted? Pricing schemes now make margins increasingly tight, yet the cost of development can be much higher than in the past.

Talented indie developers like Grubby Games could find themselves marginalised, finding it hard to sell enough of more innovative titles to survive, yet also struggling to compete in the world of casual clones. I hope My Tribe does well, but I also hope that there is room for more than just clones in the still relatively young PC casual game industry.

Will 2009 be the year that casual ate itself?

TunaSnax have published a short interview with Grubby’s Ryan Clark in our features section.

Game Connection have announced a Level Up program for their European event. This means that five lucky indies can exhibit at Game Connection Europe for free. This is a great opportunity for any start-ups to meet publishers since GC provides you with a booth, a meeting system, and a ton of publishers looking to sign projects.

Tuna did Game Connection a while ago and signed three titles off the back of it, and also made several great new contacts. Burned deep into my memory is when Nintendo themselves came to see us, little old Tuna. We were gobsmacked (and happy that the liked Alien Hominid GBA!).

And that’s the point – indies attending GC can get in front of almost anyone.

For more information, visit the Game Connection site. Highly recommended.

NESTA announced their support for the game industry at a launch event yesterday. There were a few short speeches from a somewhat eclectic mix of people including Rory Cellan Jones (BBC Technology Correspondent), Adam Gee (Channel 4), Paul Durrant (Dare to be Digital), Richard Wilson (TIGA), Jon Kingsbury (NESTA), and Charles Cecil (Revolution Software). Frank Boyd (Unexpected Media) also said a few words about his creative labs and Crossover in particular.

While this was an interesting line up, I was disappointed to have little in the way of developers represented. Even Charles – who seems to be stalking me at events this year(!) – is more of an IP holder and outsources his development these days. In fact, I was one of very few people there, if there were any others at all, representing pc/console studios; I wouldn’t class our little indie outfit as mainstream either.

Adam Gee spoke about 4IP, a £50 million 2 year fund which “aims to deliver publicly valuable content and services on digital media platforms with significant impact and in sustainable ways.” Roughly translated, they’ll part or fully fund innovative interactive projects across almost any platform – no requirement for a television component. Indies, get yourself on their mail list right now – this could be for you. I’ll write more on 4IP in the future. It should be noted that Channel 4 are already working with Introversion according to Adam Gee, although I’m not sure he was supposed to let that slip yesterday.

Rory Cellan Jones made the point that, as a journalist, he finds it very hard to talk to the game industry, including to some of our trade associations. I found that quite a surprising comment and I wondered if one or two indies may be able to get some TV time if they play clever.

I spoke briefly to Richard Wilson of TIGA over the better than average buffet lunch – no soggy egg mayo sarnies here! I’ve generally had the opinion that TIGA are for the bigger boys and nothing to do with us, but there is a sense that this may change. Richard seems quite keen to provide more support for smaller developers. We shall see.

As for the support itself, that is to be delivered in four components: Crossover, company mentoring, a resource sharing portal and a new talent initiative. I may talk a little more about these in a future post, partly to give myself time to digest the options. Each of these has potential but, Crossover apart, a lot will depend upon the actual implementation. Crossover is something I already know about and thoroughly recommend.