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I have a problem. My problem is this: Dead Space is a game I've been working on since early 2004. But recently I discovered that EA games is producing a video game called...Dead Space, with comics and a movie planned. I wasn't too nervous about it at first, but I've been reconsidering that recently as more info about the game and additional properties connected to it have come up.

My RPG is a game about being "utterly alone amidst the horrors that crawl the blackness between stars and writhe as endless armies upon dead worlds beneath black, dim suns."

The video game is a survival shooter, where you play the lone survivor of a rescue team fighting zombie-like/parasite aliens dug up from a dead world who attack and destroy an orbiting mining colony.

I don't honestly care if they riffed the idea, or even if they didn't and the similarities are absolutely coincidental, whatever, sounds like a fun game -- but I am concerned I'll lose any possible rights to the name and perhaps even the ability to eventually publish my RPG given those similarities and given the size/power of EA games should they decide to attempt to stop my publication/usage despite my prior knowledge. What are my options, here? Anyone been in this situation before that can offer advice?

(BTW, "see a lawyer" is great advice, but I'm afraid I'm poor. What are the options for those too poor to afford a lawyer under our wondrous capitalist system of law?)

Note that the video game was first announced in the final quarter of 2007. I originally announced my RPG here on the Forge in the 2004 birthday forums as a project in the works. I've also discussed it elsewhere across the intervening years, though not much.

Also, anyone who recalls discussing the system, concept, or setting with me since 2004 -- in person, via forum or e-mail, or via telephone -- please fire a PM my way.

I understand you have been working on the title for a good amount of time now, but the reality is, unless you filed for a registered trademark or have published a stack on the claim to the trademark that pre dates any such claim they have to it or their registration for it, then its theirs and there is simply nothing you can do about it.

With that, you can make a case for parallel development and if you would like you can try and present that case to someone at EA and try to get them to sign off on them having no problem with you using the trademark specifically for your RPG. But failing that, honestly, you are just asking to be sued at this point if you try to use it.

So...

Change the name of your game.

Ryan S. Johnson
Guild of Blades Retail Group - http://www.guildofblades.com/retailgroup.php
Guild of Blades Publishing Group - http://www.guildofblades.com
1483 Online - http://www.1483online.com

Well, EA hasn't registered a trademark for Dead Space, at least, not according to their legal notice on the site, so it does open up your options a little bit - IE: you don't have to start by challenging the mark.

You can:
keep on as you are, and expect to fly under their radar.  If they notice you, they'll likely issue a 'cease and desist' style legal letter.  If you don't cease and desist, it will involve an expensive legal battle (that you could probably win, having fairly straightforward evidence of prior art - except that it would be stupid expensive to fight).

or, like the man says, change the name.

Sucks, man.

James

I have run into this problem twice previously. It's definitely annoying, but I just sucked it up and changed the name.

My own approach to this would be to write them and tell them about it - how you have been working on a game with the same title and similar premise since 2004. Tell them that you don't think it'll impact either party any way, as your target audiences are so different. My impression is that EA is controlled by clumsy jurists, so probably they don't want to deal, but that's the courteous option, and sometimes these large entertainment companies surprise with their sensible legal departments - they are just rarely given a choice in the matter as nobody seems to believe that they could make the right choice.

After they deny you, you'll either have to change the name or contest the thing in court. Changing the name is the sensible thing - you don't really lose anything, there are lots of good names out there and you can even make it a contest for some publicity if you want. If something like this ever happened to me and I had solid proof of it, I'd contest it - but I'm an annoying bastard with nothing to lose but my pride, so that's probably not so good for the good ol' humble salt of the earth type. Besides, I'd be curious to see if it's really so expensive and uncertain as people make it out to be to stand for your rights in court; it's said a lot, but first-hand experience is always the best thing about actually living.

On this topic, let's put it another way.

GOB Publishing has produced and marketed a couple dozen "Axis & Allies" variants, a "Titan Variant" and expansions, a "Talisman" variant and expansions and a couple of "Risk" variants in the past. We were initially challenged by the owners of those brands on everything except the Titan variant. And knowing we had the legal right based on the manner we were doing are marketing, we stood our ground and told those companies to eat sawdust and essentially dared them to sue us.

However, in this case, there simply is no legal leg to stand on. With the product in question, since it hasn't been published and I would guess, it hasn't been marketed in any meaningful way, then there has never been a trademark claim on the name yet. Not legally. Meaning, you haven't conducted trade yet with that trademark nor ever published a claim to the trademark. So legally, you simply have no claim.

Your only shot to use the name and to do so without risking a legal battle, would be to contact EA and get their permission. And clearly, if they intend to give permission, you'll want it in writing.

Now, alternatively, if you wanted to modify your name and to narrow the scope of your trademark, then you could call your game "Dead Space Roleplaying" or something like that. Basically, incorporate additional information directly into the title and the trademark. That intentional narrowing of the target and the extension of the trademark text *might* constitute enough of a variance so that your trademark would not actually conflict with the EA games trademark. It would be one of those borderline issues and if you could prove your prior art and prior use of the trademark in association with that art, it just might be something you could successfully defend in court. If you opted to go this route, I would advise two course of actions ASAP.

1) The first is, generate an informal pre order system for your game via e-mail or web form, put that offer onto a flier and make sure to date that flier, print some quantity out and distribute it through the flier table at a handful of conventions. Make sure to stake your trademark claim on the full extended title of the game on the flier. Keep a few copies for yourself and the reciept that you get from the company that does the flier printing/copying.

2) If or when EA comes knocking on your door, you will need a pre thought and detailed plan on how to address them and prepare for your defense. Your best defense in this regard will be the media, or more appropriately, the threat of the media. EA is a large company and being public, any legal action they might want to take they know will generate some press. They will have to weigh the value of attaining a win in that legal engagement against any potential PR hit they might take for pursuing it. As shutting you down won't gain them anything and if you have a detailed plan on how you can make a great deal of noise to the press should they opt to sue you, and you can communicate that plan and that ability to them in a non antagonizing manner when they come at you with the initial cease and desist, they might very well opt not to sue you even if they want to. For us small companies vs large public corporations, the fact that messy bad press can cause a hit to their stock value, is our single best defensive tool. They have lawyers, we have the press. At the very least, if presented with this situation, your PR plan and your ability to communicate how that PR plan would be bad for them, can win you a seat at the negotiating table where you and they can discuss your mutual concerns. That's a scenario where you might sign off on an agreement limited your usage of the trademark to your game and its expansions, and where they sign off on their intent to take no action in regards to your use of the mark.

But...I think it will be a great deal less hassle for you yo simply change the name. Its not printed yet, so you're losing nothing but your emotional attachment to the existing name.

Ryan S. Johnson
Guild of Blades Retail Group - http://www.guildofblades.com/retailgroup.php
Guild of Blades Publishing Group - http://www.guildofblades.com
1483 Online - http://www.1483online.com

Thanks for the advice, everyone. I am considering it all and trying to feel out the various options. If anyone else has something to add, please do so. Also, if anyone knows of a person who would be a good individual to contact inside EA, please let me know (don't contact them for me; please just pass me the information).

I'd google the words dead space interview, and see what names pop up. Then I'd google (or search LinkedIn for) some of those names. You might just find a producer or director who can help you out.

-- Rafael

Quote from: rafael on May 10, 2008, 02:15:33 PMI'd google the words dead space interview, and see what names pop up. Then I'd google (or search LinkedIn for) some of those names. You might just find a producer or director who can help you out.

Excellent idea, thanks!

As an update: I'm a little less concerned (though not unconcerned, by any means) about possibly being stomped by EA, given a search has turned up a a couple of movies, a music album, and a fiction anthology with the same title. I may still wing them a courteous letter about the similarities and prior title usage, different target audience, and the use of a disclaimer. I recall Games Workshop was reasonable with John Wick when he put out Orkworld, despite Ork being "their word".

Raven,

Can I refer you to Chris Loizou's experience with the game now known as Cursed Empire? (Refer to Post 8.)

Just remember what happened when White Wolf published it's game "AEON", then got promptly sued by MTV for the name being too similar to "AEON FLUX". Court battles ensued, and even after the successes of the World of Darkness (at a time when White Wolf was a strong number 2 in the RPG market) and a small team of lawyers behind them, the might of MTV forced White Wolf to change the name to "TRINITY".

I'm not going to say pack up your bags and go find a new name. Take the fight to the big guys if you want, but I can't foresee them doing anything more than simply laughing at you and sending some very explicit notes about what they'll do to you if you don't follow a new course of action.

I guess the amount of effort they'll go toward pursuing you depends how much of a threat your product poses to theirs.

Thanks guys, but telling me what might/could happen isn't that helpful. I'm aware of the unfortunate horror-stories, and tales of corporate terrorism, while anxiety-producing, don't provide much in the way of useful solutions or procedures.

I will note that thus far I haven't been able to contact anyone inside EA about the issue.