Game that's already using my web games name on the App store

GameViewPoint · September 2012

I created a Flash web game at the end of 2008. From then until now that game has had over 180 million plays. The game is a mainstay on a hugely popular Flash web games portal.

In 2009 I noticed that someone had created a game on the App store using the exactly same name (different style of game though) but I wasn't interested in iOS at the time, so thought nothing of it.

Now however I'm thinking I might want to put that web game on the App store, so I'm wondering what my options are?

Let's say the game is called Space Farmer. If I called my iOS version Space Farmer iPhone would that be ok? or would I ironically get problems from the developer who have Space Farmer on the App store already?

Thanks for any advice.

dcool · September 2012

If you are the creator of the game, then you can use "Game Name " + original ;-) such as "Space Farmer Original"

Touchmint · September 2012

dcool said:
If you are the creator of the game, then you can use "Game Name " + original ;-) such as "Space Farmer Original"

I would go with iSpace Farmer. Anything with an i in front is way more legit.

GameViewPoint · September 2012

Wouldn't the developers who did Space Farmer on the iPhone, just protest and ask me to take iSpace Farmer or Space Farmer Original off the App store? and because they were first on the App store wouldn't they have a good argument? I have actually come up with an alternative name, but obviously I want to keep the branding of having the original name.

esoteric · September 2012

They could technically complain to Apple about you using a similar name, but unless they actually trademarked that name and send you the docs showing it's trademarked you wouldn't have to change anything until they do.
Don't know how all that works but since you've had that name for your online game since way before them couldn't you just trademark it and force them to change their name if all this legal stuff actually started happening.

Source: Having asked similar questions and getting replies from other people..not a lawyer ;)

Touchmint · September 2012

TBH its really hard to say unless they are a huge game I doubt they have the legal team to come after you. I would honestly try talking to them and explain the situation. I mean you had the name first with the right legal power you might have the upper hand on the name. Hard to say tho hopefully someone else from these boards can tell you for sure.

foany · September 2012

Can you modify the name of the game on the web slightly, so it's still approx the same, and create the game on the iphone with that new adjusted name? That would be my route

RoryHarvey · September 2012

dcool said:
If you are the creator of the game, then you can use "Game Name " + original ;-) such as "Space Farmer Original"

Or simply put a "tm" or "pocket edition" after the name.

I'd worry more about reviewers denying the app under clause 2.2.

GameViewPoint · September 2012

@Foany, It's an established name now on a major games portal, and across the web, so I can't change the name on the web version. Although I was thinking of adding one letter to the iPhone version (not an "i" although that's an idea)

@RoryHarvey, I don't have the TM for the name, I just put my game on the web a year before them.

@Touchmint, I've thought about talking to them, to be honest their game isn't shall we say the best in the world, they are not any of the top dev's, but even if their game is making zero money for them (which I suspect it is), I don't see any reason why they would take their game off the App store just to please me.

Right now i'm thinking of just adding the one letter to the start of the game and going with that, it's very similar still the original name, but it's a different word, so no one can say anything about it, it's just a shame I can't use the original name.

kkkkkkkk · September 2012

I wouldn't suggest adding any letter in front of the game. it would damage your search visibility. just put an "original" at the end. That is the best tactic.

GameViewPoint · September 2012

kkkkkkkk said:
I wouldn't suggest adding any letter in front of the game. it would damage your search visibility. just put an "original" at the end. That is the best tactic.

Well I would have to promote the fact that the new version has a slightly different name, sticking original at the end of the name, I just don't see why the devs who have "Space Farmer" on the app store, wouldn't complain to Apple and I'll have to take the game off the store. That's a situation I would rather avoid if possible.

RoryHarvey · September 2012

GameViewPoint said:

Well I would have to promote the fact that the new version has a slightly different name, sticking original at the end of the name, I just don't see why the devs who have "Space Farmer" on the app store, wouldn't complain to Apple and I'll have to take the game off the store. That's a situation I would rather avoid if possible.

You have the common law trademark on the name as you used it first. If you can demonstrate you had the name first then not only will you be able to fight your position if they did that but you could actually send a copyright notice to Apple to have their game removed.

GameViewPoint · September 2012

Not sure what you mean by "common law trademark" but I don't have any trademark for the name.

mediaspree · September 2012

Hit em with a DMCA notice and ask them to take it down. If they aren't making any money they will probably do it instead of having to deal with "legal bills"

GameViewPoint · September 2012

RoryHarvey said:

dcool said:
If you are the creator of the game, then you can use "Game Name " + original ;-) such as "Space Farmer Original"
Or simply put a "tm" or "pocket edition" after the name.

I'd worry more about reviewers denying the app under clause 2.2.

clause 2.2?

LevyMast · September 2012

GameViewPoint said:
I created a Flash web game at the end of 2008. From then until now that game has had over 180 million plays. The game is a mainstay on a hugely popular Flash web games portal.

In 2009 I noticed that someone had created a game on the App store using the exactly same name (different style of game though) but I wasn't interested in iOS at the time, so thought nothing of it.

Now however I'm thinking I might want to put that web game on the App store, so I'm wondering what my options are?

Let's say the game is called Space Farmer. If I called my iOS version Space Farmer iPhone would that be ok? or would I ironically get problems from the developer who have Space Farmer on the App store already?

Thanks for any advice.

What can we say? You snooze, you lose. You have no trademark on the name, and if they used their
own graphics and sounds, you have no legal basis to stop them. Copyright does not protect an "idea".

Hit em with a DMCA notice and ask them to take it down. If they aren't making any money they will probably do it instead of having to deal with "legal bills"

A DMCA notice to take down what? A game that they didn't create? This is an iPhone game, not flash.

GameViewPoint · September 2012

LevyMast said:

GameViewPoint said:
I created a Flash web game at the end of 2008. From then until now that game has had over 180 million plays. The game is a mainstay on a hugely popular Flash web games portal.

In 2009 I noticed that someone had created a game on the App store using the exactly same name (different style of game though) but I wasn't interested in iOS at the time, so thought nothing of it.

Now however I'm thinking I might want to put that web game on the App store, so I'm wondering what my options are?

Let's say the game is called Space Farmer. If I called my iOS version Space Farmer iPhone would that be ok? or would I ironically get problems from the developer who have Space Farmer on the App store already?

Thanks for any advice.
What can we say? You snooze, you lose. You have no trademark on the name, and if they used their
own graphics and sounds, you have no legal basis to stop them. Copyright does not protect an "idea".

Hit em with a DMCA notice and ask them to take it down. If they aren't making any money they will probably do it instead of having to deal with "legal bills"

A DMCA notice to take down what? A game that they didn't create? This is an iPhone game, not flash.

I agree. If they had done a direct port of my game to the App store in 2009 I would of been all over it :), but they didn't, they just used the name and did a different game. The only thing is, is that there game seems not to have any plays at all for years (according to AppAnnie), so it's kind of a shame that I can't get use my original name.

I think the main issue is if I use a name which is say iSpace Farmer then will the original developer have any grounds with Apple for me to remove my App, it will be ironic of course if they do, but if that's going to be the situation I'll just use a different name.

mastersdom · September 2012

1. Check the Trade Mark register.
2. If they haven't registered the name you can use the same name. If they complain Apple will ask you to resolve it between yourselves. Simply ask for their proof of ownership. Note that Trademarking is by country generally.
3. The games are different so neither of you can claim "Passing Off".
4. You can retrospectively apply for the Trademark but you wont be able to stop them using the name, just new apps using that name.

RoryHarvey · September 2012

LevyMast said:
You have no trademark on the name, and if they used their
own graphics and sounds, you have no legal basis to stop them.

Wrong

GameViewPoint said:
Not sure what you mean by "common law trademark" but I don't have any trademark for the name.

http://www.legalzoom.com/trademarks-faq/common-law-trademark-rights.html

http://en.wikipedia.org/wiki/Unregistered_trademark

http://tcattorney.typepad.com/ip/2008/06/what-are-common.html

foany · October 2012

Funny if this is you roryharvey!

http://www.kotaku.com.au/2012/10/dont-waste-your-dollar-on-this-half-baked-iphone-slender-ripoff/

!

ilmman · October 2012

foany said:
Funny if this is you roryharvey!

http://www.kotaku.com.au/2012/10/dont-waste-your-dollar-on-this-half-baked-iphone-slender-ripoff/

!

wow, ranked overall number 2.. LOL

foany · October 2012

Perhaps our resident trademark and copyright law expert can update us on how much he gets sued for

LOL

LevyMast · October 2012

RoryHarvey said:

Wrong
http://www.legalzoom.com/trademarks-faq/common-law-trademark-rights.html
http://en.wikipedia.org/wiki/Unregistered_trademark
http://tcattorney.typepad.com/ip/2008/06/what-are-common.html

Pointless and irrelevant to this specific case.

If you want to prove your point, find a relevant Internet case that was won by "common law trademark",
otherwise you are grasping at straws here.

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Game that's already using my web games name on the App store

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