Trademark and VN title

[noctos]

I couldn't find any existing threads regarding this so:

A new VN idea has been jumping around in the back of my head lately. A few days ago I came up with a title I thought fitting, and decided to check what would pop up if I googled it. To my surprise, I found that this exact title is actually the name of a soda brand. It was obviously trademarked by the company and now I'm having second thoughts about using the title for my VN. This experience made me curious about the trademark field in general, so I'm interested in learning more about it.

I did some quick research while commuting, and found some articles on trademark infringement. I couldn't understand all of it though, so I'm here to ask advice.

Does anyone know the laws on using trademarked titles for a visual novel? Or a site that explains it well?

[KuroOneHalf]

It generally depends on whether you're competing with the company who holds the product with the name you want. If the name you want is already taken by another visual novel, it could be troublesome. But if it's from another industry, like say, a detergent company, you should be fine.

From the bit I read this post seemed to be informative. Might want to read it over. https://moz.com/blog/how-screwed-am-i-a ... me-as-mine

[noctos]

It generally depends on whether you're competing with the company who holds the product with the name you want. If the name you want is already taken by another visual novel, it could be troublesome. But if it's from another industry, like say, a detergent company, you should be fine.

From the bit I read this post seemed to be informative. Might want to read it over. https://moz.com/blog/how-screwed-am-i-a ... me-as-mine

Thanks for the link! I'm reading it right now, but I noticed that it won't apply if the mark is "very famous." I'm not sure how to determine if a brand is very famous or not.

Additionally, I found this in another article on that site:

"Trademark protects businesses. If a trademark is being used in a truly non-commercial context, there is no infringement." Does this mean that I could use the title if my VN is non-commercial? (Source: https://moz.com/blog/trademark-basics-b ... e-consumer)

However:

"Do not under any circumstances use a very famous mark, even if your products and markets are very different"

How exactly do you know if a mark is Very Famous? Using Coca Cola or Google is a no-brainer, but what about other, less obvious brands?

[firecat]

then dont do it, they are still a business so they do have evidence of their trademark with them. its never wise to challenge things that might become too dangerous later on.

[SundownKid]

If the brand is not obvious, like it's located in a very small area of the world, then I'd say do it and you can always change the name later if someone contacts you with a cease-and-desist.

I'd say that applies mainly for national or multi national brands.

[Kailoto]

Additionally, I found this in another article on that site:

"Trademark protects businesses. If a trademark is being used in a truly non-commercial context, there is no infringement." Does this mean that I could use the title if my VN is non-commercial? (Source: https://moz.com/blog/trademark-basics-b ... e-consumer)

However:

"Do not under any circumstances use a very famous mark, even if your products and markets are very different"

How exactly do you know if a mark is Very Famous? Using Coca Cola or Google is a no-brainer, but what about other, less obvious brands?

First, a disclaimer: I'm not a legal professional in any way, so take what I say with a grain of salt.

Anyways, from what I understand about trademark law (there's really not much to it), it's designed to prevent consumer confusion. A "brand" is an actual asset to a company - the name and logo actually have monetary value. Trademark law makes it so that one company can't rely on the power of another company's brand - either intentionally or accidentally. That's why there's a bunch of fake 7-Elevens out there - those shops will see a noticeable increase in business simply by mimicking the brand.

So the question you should always be asking is, "will this confuse a prospective player?" I suppose if you actually gave the name that you're considering, it would be easier, but I'll assume for purposes of the argument that you can't. What does the famous mark clause protect?

Well, you've pretty much nailed it in your examples; even if it's from a completely different industry, some names are so ubiquitous that you would be infringing on their property regardless of what it is you're doing. Coca-Cola and Google are good examples, as are Starbucks and McDonalds. Basically, a good rule of thumb is this: if you say/show the trademark to any random person in the world and most people instantly recognize it and associate it with the company, then it's worth avoiding.

Note that there ARE big-name trademarks that don't follow the above test. Target, for instance, would be a poor choice for a department store, but perfectly fine for a VN title, because the word "target" itself is non-proprietary. Now if you had a red and white target symbol to go with that title, you'd be crossing into infringement territory, because that IS proprietary.

So really, I would ask yourself two questions. One, will the other company be threatened by my use of the name? (I'm assuming that's a no.) And two, will someone playing my game instantly be reminded of the other company's product? Because if they are, even if your choice for a name is legal, it's a poor choice.

And lastly, I want to stress that there's very little chance of you facing litigation here. As you're doing something non-commercial, you would really only have to worry about infringing on trademarks used by other visual novels, and possibly video games in general. I don't know what soda company you're referring to, but I can guarantee that they won't sue you over using their name. And in the most remote chance that you do, you'd have an easily defensible case.

[noctos]

I suppose if you actually gave the name that you're considering, it would be easier, but I'll assume for purposes of the argument that you can't.

...

And lastly, I want to stress that there's very little chance of you facing litigation here. As you're doing something non-commercial, you would really only have to worry about infringing on trademarks used by other visual novels, and possibly video games in general. I don't know what soda company you're referring to, but I can guarantee that they won't sue you over using their name. And in the most remote chance that you do, you'd have an easily defensible case.

Thanks for your insight! I guess it won't hurt to reveal the name - it's Sun drop/Sundrop. I did some more searching and noticed that there's also a brand of food items with the same name by ATfoods, which I assume is okay because the products compete in different markets. A printing company uses the same name, as well as a tanning salon.

I've started brainstorming for other names now, but it's nice to know I won't be sued if I do decide to use it. I guess there's also a question of where the name has been trademarked. I mean, I'm from Norway, and I'm pretty sure the soda is based in the US.

[PyTom]

Related to trademarks is placement in Google. Even if you don't have a problem with trademarks, you probably want to pick a name that is uniquee enough that people would search for you can find you.