Q: My company makes games for its benefit. Others buy/download our games. Would we use a trade or servicemark for our brand
Unsure if I should use Class 09 or Class 42 for my company's brand name. Is making the video games I want to make, but then selling and/or offering them to be played by others considered a service for others?
A: The answer to your question depends on the specifics of your business. However generally speaking, a trademark symbol is used to identify the source of 'products/goods' that you are selling; and a service mark is used to identify the source of a 'service'. For example, when a potential customer sees your mark, does the mark identify the source of certain products that you sell, or does it identify the source of services that you offer? Also, note that it is possible to register a mark in multiple classes/categories (as a trademark and servicemark depending on your type of business). In your case, it sounds like your mark identifies the source of the video games (goods) that are being offered for sale.
A: Whether your are using a mark in connection with your goods or services, the terms "service mark" and "trademark" are just that, designations of categories. It very well may be that the mark you adopt can be applied to services and to goods. The "sm" and "tm" designations can be used appropriately under common law usage. It is a good idea to put either one near your mark until you get your mark registered with the USPTO. Once the mark is registered you will be able to use the R in a circle indication.
In any USPTO filing you need to designate the class or classes description(s) for good and services you want the mark to be associated with. Class 9 is associated with computer and other devices. Class 42 is for services associated with scientific and technical services by professionals. It sounds like the classes you would want to explore would be associated with games and the digital services to provide access to the games. Best to consult with a local business attorney familiar with trademark protection. The lawyer can help you understand the difference between the name of your company and any mark it may adopt. Good luck.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.