据inside social games网站的消息，社交游戏的繁荣和不高的准入门槛使得社交游戏市场不仅游戏大鳄众多，大量的小型开发团队也充斥市场。

作为开发者来讲，可能你开发出了某款你确信是有革新价值和市场吸引力的产品，但是事实上这是不够的，因为你还要担心一大堆的仿制者在排队等着拷贝你的创意再凌驾于你之上获得更大的成功。

Trademark

这时候商标注册可能就是你品牌自我保护和获取更大影响力的重要途径。

为一款游戏命名事实上是相当让人头疼的一件事，你不仅要吸引现有的用户还要告诉潜在的用户你的产品究竟能提供什么乐趣。而一些泛指性的名称并不一定能最大限度支持和保护你的产品商标属性，相反那些稀奇古怪的（指不重复过去存在的名称）名称对于商标的独特支持是最为有利的。

举个例子，PastryPlay是新近很成功的一家社交游戏开发商，他们推出了一款针对玩家培育和种植Cupcake的游戏，如果把它成为Cupcake Farm显然是相当贴切的，但是事实上他们命名的是Sprinkle Harvest，后者并没有办法针对游戏的内容作出有效的概述。

当一款游戏推出的时候，可能就会有成千上万的潜在用户和无数的竞争对手。如果游戏效果不赖，马上就有可能面对被模仿的苦恼问题。举个例子PastryPlay并没有能力去阻止竞争对手发行Cupcake Farm主题的游戏，因为PastryPlay并不能有效阻止竞争对手去使用Cupcake Farm这样的词汇，因为他们本身并没有很好地界定和使用。当社交游戏巨头PlaySweet也杀入这个领域的时候，PastryPlay就显得无能为力了，因为他们并没有在名称和描述上做好防范。

如果企业开始为游戏挑选合适的名称，这个时候确认该名称的首次使用权就至关重要了。因为一旦你的名称和显存的名称相同或者相近，按照美国的商标法，你可能就要遭遇诉讼麻烦了。

对于社交游戏行业来讲，因为市场的准入门槛太低，直接导致了目前市场上充斥着为数众多的公司和游戏名称。这个时候，你推出的每一款游戏在名称的确定上都需要做更多的核查，因为事实上有相当多的游戏是默默无闻的，但是即便是这样并不意味着没有商标诉讼的风险。

上面我们举的PastryPlay还有个不幸的事情，他们为旗下的游戏取名Sprinkle Harvest，事实上这款游戏相当成功，数周的时间便实现了超过100万的月活跃用户。但是不幸的是在Sprinkle Harvest推出的一个月前，一位退休后的软件工程师Bill Baker也开发了一款游戏叫Sprinkle Harvester。尽管后者的游戏默默无闻，仅有2000的月活跃用户，但是如果他愿意，他就可以就Sprinkle Harvest的名称侵权案起诉PastryPlay。

拥有属于自己的商标无疑是相当得益的一件事，这个权益在你需要强制执行的时候就会为你带来相应的好处。回到刚才的案子上，Sprinkle Harvest的制作者之一Fiona在晚上上网的时候无意间发现了Sprinkle Harvester的侵权事情，并把它转给了PastryPlay的首席执行官，但是后者认为Sprinkle Harvester并没有什么影响而决定不予理睬。

这个时候可能就继续存在以下的问题。当PastryPlay想要继续向前发展的时候，航海版的cupcake game就叫做Sprinkle Harbor，在前者侵权问题并没有很好解决的情况下，又出现了新的可疑侵权（名称），一旦引发诉讼案，PastryPlay将完全处于被动。另外一种情况，被忽视的Sprinkle Harvester假设在数年之后被PlaySweet收购，而后者还想发展当时的这个创意，那么这个时候PastryPlay也失去了保护自己这几年维持起来的品牌的能力。

The rise of social games has changed the face of the gaming industry in countless ways. With lower barriers to entry than traditional game development, new titles are launching essentially non-stop, not only from larger companies, but from a multitude of start-ups as well.

As a game developer, you are creating a product that you believe is innovative and compelling. But how do you make your game stand out in this throng―and how do you protect yourself against the horde that will try to ride on your success? By using trademarks effectively to promote and protect your brands.
Ingredients for a Strong TrademarkNaming a new game can be a challenge. You want a name that stands out and draws players in, but you also want to tell potential new players something about the game you’re offering. One of the main problems that many developers encounter stems from this second desire—descriptiveness.

The strength of a trademark (its ability to identify the source of goods or services), is measured on a sliding scale, with generic words (“cake”) on one end, and purely fanciful marks, that is, words that have no inherent meaning, (“cakiala”) on the other. Generic words can’t be protected on their own as trademarks. Fanciful marks and arbitrary marks (words that have no relation to the goods on which they’re used) are the strongest trademarks.

In between these two extremes are the categories where most social game titles fall—descriptive and suggestive marks. The line between these two categories is pretty blurry. Descriptive marks, as the name suggests, describe a quality or characteristic of the goods. Suggestive marks, on the other hand, do not outright describe a quality of the goods, but merely suggest it.

Hypothetical example—PastryPlay is a successful new social game developer using its first rounds of funding to create a game where players plant and grow delicious magical cupcake plants.  A descriptive name for this game might be “Cupcake Farm.” The name describes exactly what the content of the game is.  In contrast, a suggestive name could be “Sprinkle Harvest.” The name evokes the content of the game without expressly describing it.

So why should you care whether your mark is descriptive or suggestive?  Because suggestive marks are considered inherently distinctive and therefore automatically entitled to trademark protection. On the other hand, descriptive marks do not, on their own, merit full trademark protection. Only once a descriptive mark has been used and advertised extensively, so that it serves to identify that one specific game, can it get full trademark protection.

When a social game is published, it is instantly viewable by millions of potential players—and countless competitors. If a game is successful, chances are it will breed imitations. In the example above, PastryPlay can’t stop its competitors from coming out with their own cupcake-farming games. And because the terms “cupcake” and “farm” simply describe the content of the game, PastryPlay can’t prevent other developers from using those words in their game titles. Social gaming giant PlaySweet can then sweep in with its newest title “Cupcake Ranch,” and there’s nothing that PastryPlay can do to stop it. If PastryPlay had chosen a suggestive name, on the other hand, they would be in a good position to challenge anyone who used a confusingly similar title for another social game.

Sifting through the Competition

Once your company has chosen several potential names for your new game, it’s time to find out if you are the first person to use that trademark. In the United States, trademark rights are based on first use in commerce, so if someone has used anything confusingly similar to your potential name before you for related products, you could be in trouble.

Searching for prior trademark use is an absolutely necessary part of the branding process. Performing a trademark search before a game title (or other company name or product, for that matter) is

adopted is exponentially less expensive—and annoying—than fighting a legal battle over your title at some point in the future. This is why you want to choose several potential names for a new game—it is entirely possible that you may be blocked from using one of the names by a prior use, particularly with the huge number of social games that are already on the market.

The searching stage is where you want to get your trademark attorney involved. It may seem simple to perform some quick Internet searches to find any really obvious obstacles, but a trademark attorney brings a couple of desirable qualities into play—knowledge of search techniques for a wide range of sources, including trademark databases, and the experience to know which search results are likely to cause conflicts.

In the social game space in particular, because the barriers to entry are so low, there are an incredibly large number of games out on the market. While many of these games are not huge success stories, and may have a limited number of players, trademark law doesn’t care how many monthly active users you have—only who used the mark first.

Suppose that PastryPlay didn’t perform any trademark searches before adopting the game title “Sprinkle Harvest.” The game is released, and thanks to creative genius, effective marketing, and word of mouth, it’s a huge success, with over a million monthly active users in just a few weeks. Unfortunately for PastryPlay, Bill Baker, a retired software engineer, coding in his spare time, had published a similar game called “Sprinkle Harvester” about a month before. His game isn’t as sophisticated or popular. He only has about 2,000 monthly active users. But if he files a lawsuit, he could force PastryPlay to change the name it has spent so much time and money promoting, and he could also be entitled to a lot of money in damages.

Prepare in Advance

The good news is that there are ways to protect your new game title before the game is published. The United States Patent and Trademark Office allows you to file an Intent-to-Use (“ITU”) trademark application. Essentially, this application allows you to reserve your rights in a trademark that you plan to use. Protection for ITU trademarks dates back to the moment the application was filed.

Let’s re-visit our prior situation, but with slightly different facts. PastryPlay settles on the name “Sprinkle Harvest” about halfway through its development process and immediately files an ITU trademark application for the title. Shortly after PastryPlay files its application, Bill Baker releases his “Sprinkle Harvester” game. PastryPlay then releases “Sprinkle Harvest” about a month later. In this scenario, PastryPlay is now in control, with the basis to claim trademark infringement against anyone using the name after its trademark application date, including Bill Baker, who will likely have to change his game title. And, because PastryPlay’s application was on record, and Bill had a duty to search trademark records before adopting his mark, he may now have to pay a higher amount in damages than if PastryPlay had simply used the mark first.

As you can see from this example, the filing date of an ITU application is incredibly important. By being proactive about your trademarks, you can gain the right to prevent future developers from using any titles that are confusingly similar to your own. The date from which you can first establish trademark rights could prove to be the difference between maintaining the goodwill of your brand or losing your investment.

You Have Your Cake. Now Eat it, Too.

Having trademark rights is all well and good, but you don’t maximize the benefit from having those rights unless you enforce them. Enforcement is an integral part of both maintaining your legal rights in a mark and retaining the distinctiveness of your brand.

The first step of enforcement is keeping an eye out for infringing uses. If someone on your team notices a game with a similar name, send it to your trademark attorney to find out if it’s going to be a problem. You can run periodic searches of social game platforms, or have your attorney do it for you. Your attorney can also order watching services that will monitor new trademark filings, both in the United States and abroad, in order to identify potential new threats as quickly as possible.

Once a potentially infringing use has been identified, you need to address it. The most typical way to do that is to have your attorney research the situation, then send a cease and desist letter if appropriate. Ideally the letter will lead to a quick resolution, but in some cases, further legal action may be necessary.

Back to the delicious dealings of PastryPlay—Fiona Frosting is an artist working on Sprinkle Harvest. While surfing the Internet one night, she discovers the infringing Sprinkle Harvester game and notifies PastryPlay’s CEO. The CEO decides that because the infringing game is so small, he will just ignore it. This leads to a couple of potential problems—First, PastryPlay does decide to go after a more popular, nautical-cupcake game called “Sprinkle Harbor.” The makers of Sprinkle Harbor point to Bill Baker’s Sprinkle Harvester game as evidence that PastryPlay’s trademark lacks distinctiveness, and that coexistence should be possible, since Sprinkle Harvest is already coexisting with a more similar mark. This could cause complications if PastryPlay tries to bring a lawsuit, and almost certainly puts it in a weaker position when negotiating a settlement.

In a second scenario, PastryPlay has ignored the Sprinkle Harvester game until seven years later. During that time, Sprinkle Harvester was acquired by industry giant PlaySweet, which upgraded its graphics, and launched a massive marketing campaign. Now an active competitor, PastryPlay decides to sue. But PastryPlay has waited too long. PlaySweet is able to mount defenses based on implied consent, laches, and the statute of limitations for trademark claims, and it is now too late for PastryPlay to protect its brand.

As a developer, your game titles are one of your most valuable assets. The value in your titles comes from their ability to identify your game. The more competitors there are in the market with similar names, the less your title serves as a unique identifier. As a result, it’s vital to address any infringement in order to maintain that value.
Sweet SatisfactionTrademarks are one of those areas where handling things properly from the beginning can save a lot of trouble and heartache down the road. There is no substitute for getting trademark advice directly from your attorney, but hopefully this article has given you a basic recipe to keep in mind while cooking up your game brands.（source：inside social games）