How different must a name be from a trademark?

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How different must a name be from a trademark?

I’m building a video game similar to the arcade game Whac-a-Mole, and that particular name is trademarked as a game. Can I call my game something like Wacky Moles, or Whacky moles? How can I be sure that I’m safe from a lawsuit?

Asked on August 22, 2011 California


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

California's trade mark or service mark laws as well as federal trademark or service mark laws are such that one cannot use a name that is confusingly similar to the general public as another person's use of a name for his or her product or services.

The "test" is whether or not a reasonable consumer would be confused by the name used by one person versus another for the use of services or product.

The name "Whac-a-mole" is somewhat similar to the names "Wacky Moles" or "Whacky moles" that you want to use.

To safeguard your intended game's name, you will need to try and register the desired name under federal statute known as the "Lanham Act" through th United States' Patents and Trade Marks Office if you want to protect any intended name nationwide. You can go online to see how the process works.

If you only want to protect the desired name in California, you make an application for the desired name through California's Secretary of State's Office. If you get the approval of any name desired to be registered with any of the above offices, you have the prima facia right to use it to the exclusion of all others subject to common law prior use in a localized geograhic area.

You should consult with a trade mark and service mark lawyer further on this issue.

Good luck.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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