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Alex Reese
Alex Reese, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 2990
Experience:  Experienced in intellectual property law
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My friends and I are forming a independent video game developer

Resolved Question:

My friends and I are forming a independent video game developer business. We already have a non-generic name picked out for us. Another group of two people using the same name are also working on making a video game. As far as we can tell, we popped up before them (both have a blog, with us having the earliest blog post). After doing a USPTO trademark search, the name we desire does not seem to be currently trademarked. We plan on forming an LLC under that name, and were wondering if we would be safe to file a trademark for the name and logo.

Can we form our business under our desired name, trademark our name, and force the other group to change their name, or should we pick a new name?
Submitted: 10 months ago.
Category: Intellectual Property Law
Expert:  Alex Reese replied 10 months ago.

Alex Reese :

hello

Customer:

hi

Alex Reese :

TM rights are based on use of the mark in commerce in connection with goods/services, so if they legitimately started using the mark before you then I suggest getting a new name to avoid risks/headaches down the road. However, if you were first or if they are still in a little-known stage, then you should probably file a federal TM asap in order to soldify superior rigths

Alex Reese :

however, if you haven't begun doing business using the name then your rights have not started and you cannot get a TM application going yet

Alex Reese :

(you can do an "intent to use" application, which requires you to follow up wihtin 6 months with evidence of your use in commerce)

Customer:

Okay. they are currently just two people making a game casually. they have not sold anything yet, though they do imply that they wish to do so sometime in the future

Customer:

does receiving croudsourced funding count as doing business?

Alex Reese :

well you have to be using your mark in commerce, so advertising and conducting your usual business with the name

Alex Reese :

receiving funding by itself would not count

Alex Reese :

but advertising might count

Alex Reese :

you need to provide something like web screenshots (live), brochures/advertisements, product label etc to show the use of the mark

Alex Reese :

you will also want to speak with a TM attorney to prepare/file the TM application for you

Customer:

so advertising the croud-sourcing project might count?

Alex Reese :

yes it could

Alex Reese :

maybe even letterhead or other uses that have been held to the public

Alex Reese :

your TM attorney can guide you on that when the time comes

Customer:

would offering a reward for giving funds via croud-sourcing increase the chances of it counting as business?

Alex Reese :

any interaction with the oublic using the mark would help

Alex Reese :

public

Customer:

okay. thank you very much

Alex Reese :

sure, best of luck

Alex Reese :

fyi you may also be able to use legalzoom to file a TM application....its a little cheaper but not as good as using an attorney

Customer:

alright. that might be a good option for us. we don't have a lot of capital available to us right now

Customer:

approximately how much does a federal trademark application cost

Alex Reese :

$325 for the govt fee

Customer:

okay

Alex Reese :

please don't forget to Rate my response so i get credit thanks

Customer:

assuming we get the trademark approved, we would need to inform the other group that we have it, and that they need to stop using it. would that just be a standard cease and desist?

Customer:

(and I'm not forgetting to rate you. you have been very helpful)

Alex Reese :

yes, assuming they are still around and if you felt that their use of the name is XXXXX XXXXX cause consumer confusion or otherwise harm your mark

Alex Reese :

then you could send them a cease & desist letter

Customer:

okay.

Alex Reese, Lawyer
Satisfied Customers: 2990
Experience: Experienced in intellectual property law
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