Stephen S. Wu-- SL: Legal Writer,, (408) 573-5737, 50 W. San Fernando St., Ste. 750, San Jose, CA 95113

What Name Should We Choose for Our Game?

One common question that game developers may come across is how to choose a good name for a game. Marketing professionals may have a perspective on choosing good names, such as selecting a memorable name, finding a name that gives consumers a clear idea what the game is about, and including a key word. A few years back, for instance, it seemed everyone was creating game titles with “Zombie” in the name.
Choosing a name from a marketing perspective, however, is different from how a lawyer thinks about choosing a name. Game naming implicates the law of trademarks. A “trademark” is typically a company name, product name, or logo used to distinguish a business’s goods from those sold by others and to show the source of the goods. Think of the word mark COCA COLA for soft drinks or the golden arches logo for McDonald’s restaurants. Strong and famous trademarks help to sell products and can greatly add value to a business. A business can stop competitors from using the same mark for the types of products sold by the business or related goods.

Trademark law, however, does not treat all marks the same way. The law recognizes a hierarchy of marks. The law affords some marks stronger protection than others.

Under trademark laws, the strongest marks fall into to categories. The first is called “fanciful.” A fanciful mark means nothing more that the product it names. For instance, EXXON and KODAK are made up names with no meaning other than the products and companies they represent. The other category of strong marks is called “arbitrary.” Arbitrary marks have a meaning, but not having anything to do with the product they are being used to sell. An example of an arbitrary mark is APPLE for consumer electronics. The fruit apple has little to do with consumer electronics. Likewise, CAMEL as a mark for cigarettes is an arbitrary mark. Camels have nothing to do with tobacco.

“Suggestive” marks are the next strongest category. A suggestive mark suggests rather than describes an ingredient or characteristic of the product, requiring imagination for the reader or listener to ascertain the nature of the product. For instance POISON for cologne gives a reader the impression of an exotic scent that might be used by people who like excitement and danger.

“Descriptive” marks are weak. Descriptive marks describe some characteristic of a product, its purpose, its function, its use, or some other desirable feature. For instance, word marks like BEST, FAST, and TOPS are descriptive. A business can protect a descriptive mark only if, through long-term marketing efforts, it can show that consumers have come to associate a mark with the business. Examples of well-known protectable descriptive marks include WINDOWS for Microsoft’s operating system software, A-1 for steak sauce, and SHARP for televisions.

Finally, generic words are completely unprotectable under trademark law. For instance, a business cannot stop others from using the word “celery” for the vegetable. Interestingly, there are some English words that started as trademarks, such as “gasoline” and “escalator,” which have become generic over time.

A game developer obviously needs a game name that helps to sell lots of licenses to customers. However, the developer may want to pick a name that is fanciful or arbitrary from a trademark perspective. Strong marks may not immediately suggest the nature of the game, but in the long term provide the maximum legal protection against companies trying to trade off the goodwill built up by the business in its marks.