This article is Part III of a series that elucidates the issues surrounding iPhone Tetromino games, Intellectual Property Law, and the Tetris Company. The series begins with a reproduction of the Tetris Company’s Cease and Desist Letters. Next, it defines and explains patent, trademark and copyright law. Finally, it concludes with a re-examination of the Tetris Company’s claims of infringement.
What is a Trademark
A trademark is anything used in commerce to associate a product or service to its legal entity of origin (this can be an individual, organization, or company). A trademark can apply to a word, name, symbol, device, and even a sound (USPTO). One common example of a very simple, but clearly recognizable trademark is Nike‘s logo.
Trademark rights prevent outside vendors from using identical or “confusingly similar” marks on their merchandise to sell their products (USPTO).
For example, Nike Inc.’s trademark rights prevent other athletic manufacturers from designing and selling a shirt that uses the Nike logo or a confusingly similar variant thereof. Nike Inc. has invested considerably in advertisement to build its company name and to ensure a certain degree of quality for its products. Therefore, another company’s use of its logo unfairly misleads the customer and dilutes the value of Nike.
Trademark rights do not, however, “prevent others from making or selling the same goods or services under a clearly different mark.” (USPTO). This means that I can go into any athletic store, find a nike shirt that I love, manufacture an identical product (provided the design is not copyrighted and the formula for the material is not patented), brand it with my own logo, and sell it.
Trademark rights can last indefinitely, provided the owner continues to legally enforce and protect his trademark. (This makes sense; we wouldn’t want to create a new name and logo for our company every ten years or so.) If, however, the registered trademark is in use by many other companies to the extent that it is no longer uniquely associated with the trademark owner, renewal can be contested in court.
Tetris and Trademark
The Tetris Company has obtained registered trademarks for the use of the word TETRIS and the Tetris logo in the industries of:
“games and playthings; namely action figures, bagatelle games; video games and video game cartridges; electronic game equipment for playing video games; electronic game programs; electronic toys with a clock or timepiece feature; hand held electronic toys; non-electronic hand held games; player operated electronic controllers for electronic video game machines; toy figures mountable on pencils and pens,”
“video game cartridges and software for playing video games,”
“clothing, namely shirts, hats and t-shirts,”and “hand held video games”.
Has the Word TETRIS Become Generically Associated with the Genre of Tetromino Falling Block Games?
Hundreds of tetromino falling block games are available on the internet that are not associated with the Tetris Company, but that call their products TETRIS (or a variant thereof). In fact, its possible for a tetromino player to go through life without buying Tetris, or even knowing about the Tetris Company.
This is because the word TETRIS has come to refer to the genre of tetromino/falling block games. As such, the question now becomes, is the Tetris Company’s registered trademark on the use of the word TETRIS valid?
This issue has never made it to court, most likely because the Tetris Company is afraid of losing a legal battle that would revoke its trademark rights.
What Makes a Name “Confusingly Similar”?
It is also unclear how dissimilar a tetromino game name must be to the word TETRIS. Some believe that the trademark covers the TETR prefix. But the term “tetromino” and the prefix “tetra” (meaning four) which predate Tetris, also contain TETR.
This issue has also never been settled in court.
How to Avoid Trademark Infringement
To safeguard against any trademark infringement claims, create your game, refer to it as a “tetromino” or “falling block game”, and give it a completely different name (or one that you are prepared to defend).