Keene, TX asked in Gaming and Trademark for Texas

Q: How to inquire about an individual's intent to sell goods/services in order to discover if I might infringe a trademark?

I have been developing a video game for more than a year now. Early on, I did a google and TESS search for any similar products, in the same class, with the same name. Nothing existed at that time, but I neglected to register a trademark for the name.

Searching this time around, there still isn't a registered trademark on the name, but I've come across something on a google search. I come across a university student's project. It is a game that has the same name, with a similar concept as well. But, it doesn't appear to be offered as a good or service. It doesn't appear to have ever been for sale, nor does it seem the individual has intent to sell it. It was a school project published in a blog in the summer of 2019. It is also on the university's project archive page..

I ended up applying for the mark just in case.. I really want to use the name I had in mind. How can I go about having a conversation with the project owner about weather or not the name is OK for me to use?

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2 Lawyer Answers
Evelyn Suero
Evelyn Suero
  • Trademarks Lawyer
  • Miami, FL

A: Contact the blog owner and inquire if they can put you in contact with the student. Note however that an intent to use is not the same as actual, continuous use in commerce. In the United States, the general rule is that trademark rights are based on priority of use in an actual business or trade. Consult with an attorney to determine the extent of the student's right to the mark, if any.

Tania Maria Williams
Tania Maria Williams pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Trademarks Lawyer
  • West Palm Beach, FL

A: There are strict privacy rules that prohibit universities from disclosing student information. If you have the student's name from the article, you can probably do a Google search to see if you can find the student. However, I see that you said that you have already applied for the registration so you may want to wait and see if anything happens during the opposition period. Something you may want to think about is whether your name could be descriptive if someone else creating a similar game called it the same thing. That's something that the examiner will look at.

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