OK, so the subject line is a little misleading.

I've had a game for 13 years that I have finally decided to get off my duff and publish this year.

However, I've become aware of a magazine (begun only 2 years ago) that is the exact same title as my game.  I have yet to check formally, but I suspect that the magazine probably has a trademark on their name.

Does this automatically and definitively mean I'm screwed with my game's title? That would be truly heartbreaking to me.

Or is there some law that allows two different products (a magazine and a role-playing game) to have the same name?

Any help before I start prepping press releases would be greatly appreciated.

Thanks,
C

I felt the need to clarify: my game is not called "cosmopolitan."  :)

However, the title IS a single word in the English language, with an exclamation point at the end, just like the magazine in question.

I'm usually the last one to offer "go see a lawyer" as advice, but in this case it actually has some merit. Two similar trademarks can co-exist, but only if they're relevant to sufficiently different markets - either different areas of the world or different product segments, such that the audience is not in danger of confusion between the two. A lawyer knowledgeable in how trademark cases are handled in the relevant jurisdiction could probably tell you whether the two products are too similar to have similar trademarks. I wouldn't venture a guess on this, the decisions over the world have been so different through the years. Usually having the exact same name would be too close for almost any products directed at the paying public, I'd expect; the average customer, were he ever to be faced with both products, would pretty much have to assume that they have something to do with each other even if they were completely different products.

In all likelihood the better course for you is to just change the name of your game. There are plenty of good names, and little reason to get stuck on one that is already in use. Even if you decided to use it and managed to dodge trouble from the magazine publisher, the association with the magazine (should any happen) wouldn't be a positive thing for your product; it'd just confuse and mislead the audience.

Also, I should note: there is no such thing as "having a trademark on their name" you'd need to check on; trademarks, just like copyright, are established merely by using them. A "trademark" as a term doesn't mean anything more abstract than a brand used to differentiate a product, so a magazine's name pretty much by definition becomes a trademark when the magazine is published. Trademarks can be registered for additional protection in some jurisdictions, but that shouldn't matter to you as the potential infringing party; your goal is to avoid infringing altogether, after all.

Eero, that post went over an important line. You can see it yourself: in the first paragraph, you say you "wouldn't venture a guess on this," and then the second paragraph goes ahead and ventures a guess. Which do you think our 'drkrash' is going to think is more important?

Drkrash, I strongly recommend learning more about the terms copyright and trademark, and the legal history of those terms for this hobby. You probably aren't going to be able to do that here or at any public forum; even the most thoughtful of posters will stumble and give mixed messages, as Eero just demonstrated. The best we can do here is describe our own direct experiences, not as example for you to follow, but as examples of the range of things which happen in reality.

For example, one of my games, probably the best known of them, is Sorcerer. This has been the name of several role-playing products in the past, including a small wargame-ish type thing from the 1970s, and in part, a supplement from the 1990s. It's also the name of a character class in D&D. Outside of role-playing, it's the name of a commercially-unsuccessful but well-known action movie. Although it is obviously well over the line that Eero (speculatively) draws between safe and unsafe, I've encountered no legal difficulties of any kind by using it.

Other actual examples from people who've dealt directly with this issue are welcome in this thread.

Best, Ron

Polaris, my first game, shares a name with a semi-famous French RPG line about people living in giant submarines in a post-apocalyptic world. My game is about star-knights fighting against endless demonic armies at the north pole.

After some digging for an e-mail address, I contacted the author/owner of Polaris directly. He said he was fine with me publishing my game, but I should ask him again if I publish it in French and, since he had a new version coming up, maybe it would be a good idea for us to distinguish our games with subtitles. So mine is Polaris: Chivalric Tragedy at Utmost North and his is Polaris: Rise of the Geneticists.

No problems, no lawsuits. I did get one annoyed letter from a fan of the French game accusing me of "stealing" the name, but I told him the story I just told here and that satisfied him.

My (non-lawyer) advice would be to contact the magazine publishers directly and ask them.

yrs--
--Ben

I'm in the process of trade marking a title of an upcoming game. You can do it on line for $275. First you check to see if the words are already trademarked (a simple search on the government web page). I found my words were not trademarked but if they had been it might not have been fatal. When you trademark it is in a specific catagory. There are a LOT of catagories about games. Mine was under "Board Game" there is another for role play game book so the two wouldn't conflict. If you want to trademark for other catagories (like tee shirts for instance) it costs more cash.

When a word is trademarked and you use it in the same catagory there must be a lega risk but these things are self enforcing. Thus the company that published the Sorcerer game in the 70's is likely no longer around to enforce the trademark today. With my trademark it will be up to me to send cease and desist letters out.

You know my companies name is Hamster Press and there is another Hamster Press out on the west coast that publishes comic books (I think). No problems. I make Matrix Games (Engle Matrix Games) and have had no problems with Matrix Games the computer game company (in fact I've sold them puppets). One would suspect that a small RPG product is not going to even be noticed by a profit making magazine but at worst you get a cease and desist letter and change the products name. Don't print too many at any one time!

Chris Engle
Hamster Press.net (rather than .com which are those guys out west!)