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Trademark Law Doesn’t Know How to Deal With Mobile Apps

"The Video Game Lawyer” joins Ben Lindbergh and Justin Charity

(Getty Images)
(Getty Images)

Big game studios obviously need a lawyer available, but even studios with fewer than five people should have one. A group of friends working on a new game needs a partnership agreement in writing. Everyone needs to run IP by a lawyer to make sure it doesn’t infringe on someone else’s work. And if a game targets anyone under the age of 13, then the studio needs to comply with the Child Online Privacy Protection Rule (COPPA) and any other regulations. To learn more about the legal hoops developers have to jump through, Ben Lindbergh and Justin Charity talked to Stephen McArthur, an attorney specializing in video game law, on the latest episode of Achievement Oriented.

When it comes to developing a mobile app, the legal framework that developers have to navigate becomes even more head-scratching. First, a brief example of trademark law outside the mobile world:

"As anyone that’s spent a few minutes reading about trademark law [may know] … you can have the same trademark as someone else if your products are different," McArthur began. "And this is why you can have a Delta Airlines and a Delta Faucet. Because even though they’re both Delta, no one is going to confuse an airline company with a water faucet company."

But with mobile applications, it’s different. The U.S. Patent and Trademark Office treats all mobile applications the same, regardless of what their actual function is. Let McArthur explain:

"In the app world, you see [missteps] a lot. Because a lot of these games, they’re not on Steam, they’re not on consoles, they’re iOS or Android Mobile applications. And this is actually a really interesting part of trademark law. … With mobile apps, let’s say I have a video game called Fire. And someone has a workout video series called Fire. Well in the normal world, we could both call them Fire and there is no confusion. But with mobile apps, they’re both mobile applications. They’re both sold on the same platform, and you type ’Fire’ in Google and they [both] come up. And the trademark office considers them both mobile applications. So now you have all these trademark issues where if your game title shares a title with any other mobile application, you theoretically could face a lawsuit."

So if you’re making the next killer app, the lesson is clear: Get a lawyer.

"If you’re making a mobile application game, trademarks become a big deal. Especially when there are 500 [or] 600 new mobile apps a day, it’s pretty easy to accidently start conflicting with someone else’s trademark. It’s kind of still an open question over to what extent just being a mobile application alone means the goods and services are identical."

Listen to the full podcast here. This transcript has been edited and condensed.