It may be understandable that those not involved with the tabletop role-playing game hobby believe that this past-time “died” in the 1980s or that it simply had something to do with Dungeons & Dragons.
Tabletop role-playing games have always been a niche hobby. However, the hobby is, contrary to that popular belief, nowhere near death and is going strong. Further, with the advent of Kickstarter and other crowdfunding platforms, the publication of new tabletop role playing games is on an upswing and is no longer just confined to a handful of companies such as TSR, Fantasy Games Unlimited, GDW, or Chaosium.
That being the case, designers and would-be publishers of tabletop role-playing games need to register their business and product names and logo designs as US trademarks as necessarily as do any other entrepreneurs.
Game design is often a labor of love as much as it is a business (or more so!). A traditional, tabletop role-playing game’s development is generally the product of years’ worth of game mechanics design and fine-tuning, playtesting, and world-building. All of this work often pre-dates the attachment of a name to “the system.”
A tabletop role playing game designer will often have designed elaborate maps of the game world in question, down to individual dungeon or city neighborhoods or districts or even castle or other building interiors long before resolving to settle upon the game’s actual “name.”
This author himself played for years in a friend’s (excellent) “homebrew” tabletop role-playing game campaign which, itself, was known only as “Tim’s game.”
However, once a game designer settles on a particular name for a new tabletop role playing game system and makes the serious decision to form a business in order to publish and market the game, that designer should consider the retention of a Michigan trademark attorney to be a first and necessary start-up expense.
Before the hiring of graphic designers and artists to create the lushly beautiful hardcover manuals that tabletop role-playing hobbyists have, these days, come to expect, the budding game design entrepreneur must take the necessary steps to ensure that the game’s name—and the game publishing company’s name—is actually going to be protectible and enforceable as a registered trademark.
Likewise, the game and the publishing company’s logos must also be enforceable as registered trademarks for the brand—and the company—to survive.
However, it is probable that few, if any, new tabletop role playing game publishers consider US trademark registration as the necessary start-up cost that it is.
What Does US Trademark Registration Do For Tabletop RPG Designers?
Trademark registration provides a number of significant advantages and protections to tabletop role playing game designers and publishers.
- Provides the Right of Exclusive Use in the United States
US trademark registration allows you the exclusive right of use of your particular publishing company or RPG name in the United States in association with the sale of your particular product.
If you own a registered trademark, no one else may register a business or product name with either that exact wording, or even wording that may be considered “confusingly similar.”
If they try, well, see #2, below.
What are the requirements for a tabletop role playing game name, logo, or publishing company name need to register as a trademark?
This is well-discussed in some of other blog entries, but, in short, it must be:
- Unique enough to specifically identify you as the source of your tabletop role playing game product (not generic or “merely descriptive” of the product itself);
- Not likely to confuse US consumers in relation to another previously registered trademark (i.e., don’t call your role playing game Dragons And Dungeons or Cthulhu’s Cry);
- Used in interstate commerce in the United States (sold across state lines).
There are other “no-no’s” to watch out for, but that’s what you hire an experienced trademark attorney to help you with.
It is generally important to remember that the purpose of trademark protection in the United States is to assure consumers that they are buying what they think they are buying from the person that they think they are buying it from.
If your mark is “likely to confuse” those consumers as to who is selling what, that, along with the uniqueness requirement, is what you need to look for as a tabletop role-playing game publisher.
- Allows You to Sue for Infringement in Federal Court
If someone does “steal” the name of your tabletop role-playing game, what then?
If you have not registered your trademark with the US Patent and Trademark Office (USPTO), you can send them a polite letter asking them to stop using it.
If you were using it in interstate commerce first, you do have the common law right to that name or logo.
But that’s about all you can do.
If you have actually registered your trademark with the USPTO, you can also sue them in Federal Court for trademark infringement if they ignore the initial cease and desist letter you have your trademark lawyer serve out on your behalf.
You can also demand turnover or destruction of infringing inventory, marketing materials, and the transfer of ownership of domain names, among other things.
Trademark registration is a powerful tool in an industry in which knock-off or “inspired by” products proliferate the marketplace, and in which crowdfunding platforms make entry by first time entrepreneurs who may not know any better highly accessible.
- Will Prevent Others from Registering Confusingly Similar Trademarks
Just having your tabletop role-playing game name or logo registration sitting on the USPTO’s Principal Trademark Register will, without your even knowing it, stop the ongoing registration of the same or similar trademarks.
The first thing that an experienced trademark attorney will do for a client is to run a professional clearance search of the proposed mark.
This thorough cross-platform and cross-jurisdictional search is aimed to root out any conflicting trademark registrations or prior uses of the mark before the client spends time and money attempting to register a mark, possibly only to fail.
That clearance search will, first and foremost, scour the Federal trademark registries.
Should your role-playing game mark appear in a clearance search, it will trigger the drafting of an Opinion letter to all new prospective trademark applicants from their attorneys advising them to think of a different name before proceeding.
You got there first. And you stopped their conflicting registration in its tracks without lifting a post-registration finger.
$0.00 is always money well-spent.
- Allows You to Request that US Customs Block Infringing Product
If infringing tabletop role-playing game books or accessories are imported from overseas, a US trademark registration entitles you to submit a request to US Customs to have these imports blocked from entry into the US.
Some e-commerce platforms, further, are highly sensitive to this possibility. It is one of the reasons that Amazon, for example, requires its Marketplace sellers to have a US Trademark Registration to participate in its Brand Registry program.
Amazon, for one, also requires that the active registered trademark appear on your packaging or product. (This is no different than what the USPTO requires for registration in the first place, it must be noted.)
- Allows the Use of The “®” Registered Trademark Symbol
US trademark registration is required for the use of the ® registered trademark symbol alongside your tabletop role-playing game business or product name or logo.
This symbol is not simply a Wing Ding that you can slap onto your website masthead as a sort of generalized claim of ownership.
In fact, unauthorized use of the registered trademark symbol is fraud.
The USPTO’s Trademark Manual of Examining Procedure (TMEP) states: “Improper use of the federal registration symbol that is deliberate and intended to deceive or mislead the public is fraud.”
That your improper use was an honest mistake is a defense to an allegation of such fraud, but—do you really want to be having that conversation to begin with?
If you are found to have fraudulently utilized the registered trademark symbol on your tabletop role-playing game product or in your marketing, you may be barred from ever registering that as your trademark.
- Provides a Basis for Your Business’ Value in the Market (Hello, Buy-Out Offer!)
It is probably the case that most tabletop role-playing game publishers are not truly in it for the money. Again: labor of love.
Then again, nobody wants to lose money on a venture, either.
A recent study has demonstrated that companies with registered trademarks are worth more than companies that have not protected their brands and other intellectual properties.
Your tabletop role-playing game publishing company is far less likely to get that juice buy-out offer from Wizards of the Coast (or whomever) if it doesn’t even own its brand signifiers.
If a company can’t enforce its trademark ownership in Federal Court, that isn’t an entity worth paying top dollar for. If it doesn’t have a registered trademark, the “good will” value of that trademark—which is what buy-outs are intended to “buy out”—is negligible.
You publish role-playing games rather than, say, pornography because you love role-playing games.
It doesn’t mean that the venture shouldn’t be profitable—if you take the right steps.
Is There an Issue with Trademark Registration for Tabletop Role-Playing Game Titles?
Short answer to a long question: no. There is no issue with registering the name of a tabletop role-playing game as a trademark.
This is a misconception that arises, likely, from US copyright law. The title of a work cannot be protected under US copyright law, it’s true.
However, trademark law is a different branch of US intellectual property protection. Its purpose is to protect a term or design as an identifier of the source of good or service sold in US Commerce, as noted above.
A game is a product, or good, sold in US commerce. The name of that product can be registered as a trademark like any other.
The exception to this arises with regard to “creative works.” The title of a single “creative work,” such as a novel or audio CD or film cannot be registered as a trademark unless it forms part of a series of such works marketed under that same title. (Think Harry Potter.)
While tabletop role-playing games are sold in the form of “books,” they are not “creative works” for purposes of this single-work prohibition.
This isn’t to say your RPG trademark registration application won’t suffer a refusal on this basis, incorrectly. It is to say you should hire a good trademark lawyer to assist you from the get-go.
How Do You Register a Trademark For a Tabletop Role-Playing Game?
So I’ve convinced you, the up-and-coming tabletop role-playing game publisher, to pay attention to the need for registration of your trademarks in your new venture.
How do you go about doing that, then?
Your first step is to contact an experienced trademark attorney who will, first, conduct that thorough clearance search discussed above to ensure that your highly original publishing company name and game titles are as available for your use as you hope that they are.
Your trademark attorney will then, after providing you with an Opinion with the results of that search, expertly draft and file your trademark registration application with the USPTO in a manner that captures the unique nature of your game product while also avoiding any of the common mistakes made by non-attorneys in pro se-filed applications.
If the USPTO refuses your application as likely to confuse consumers, merely descriptive, or as a single-work title (or upon many other available bases for refusal), your trademark lawyer will be ready and waiting to respond and, hopefully, overcome the refusal to move your application to final registration.
Once registered, you’ll need to keep using the role-playing game name or logo in commerce to continue ownership of the trademark registration, and your trademark attorney will handle that for you as well, over the full lifespan of your business and your gaming product.
Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting entrepreneurs, solopreneurs, artists, musicians, start-ups, and larger enterprises with robust intellectual property portfolios, and others in all industries with trademark registration, trademark renewal, trademark monitoring, and Office Action refusal response matters.
Trademark law is a Federal practice area, and we represent clients across the United States—and globally for registration and maintenance needs.
We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration success.
Further, Attorney John Hilla has been involved in the RPG hobby and industry dating back to the early 1980s.
Click the “Register Your Trademark” button below to schedule your initial consultation and to begin your brand protection journey.