Books, articles, and videos created for the benefit of others with a commercial purpose may be associated with a source identifier when they are part of a series of works emanating from the same source. The medium in which such materials are published and their subject matter are essential for proper classification of the goods and services during the registration process. Content provided over the Internet, such as audiovisual files and blog posts, may also be protected by a service mark if the topic of the information is described with particularity in the application – a prerequisite for making likelihood of confusion determinations under section 2(d).
Live musical performances are classified as services by the USPTO while sound recordings are treated similarly to other creative works in written form.
Specimens submitted for marks associated with live performances must comply with all the requirements established for service mark specimens to pass muster.
The name of an artist or a group may be used as a trademark for sound recordings only if there is evidence that the name is used on a series of recordings and it serves as a source indicator for the series.
The title of a video game may be registered as a trademark even if it connotes a single game as opposed to a series of games. Titles of video games are treated differently for registration purposes than titles of other single creative works, such as books, recordings, or films, because the content of video games is presumed to change with each new update released.
The advent of mobile and cloud platform gaming, which lowered market entry barriers for game developers, not only increased competition in the industry, but also amplified the importance of source identity behind video game products. Conducting a thorough clearance search of a video game title is essential because, like so many other segments of the market, the field of mobile platform games is crowded and all mobile applications are treated as identical goods and services by the USPTO irrespective of subject matter. In addition, because of a recent trend to revive old games, applicants should be wary of dead or phantom marks that may present challenges to registration.
Registering a video game title as a trademark cannot prevent cloning of the game per se, but it might discourage the practice by implying that the owner is proactive about its intellectual property rights. It is also possible that publishers of video games seek trade dress protection for games with consistent theme features, which might be indicative of source, in order to discourage clones.
Original Works of Art
The name or pseudonym of an artist affixed to an original work of art – even in the form of a signature – may be registered as a mark on the Principal Register without a showing that the name identifies a series of creative works. Original works of art include paintings, murals, sculptures, statutes, jewelry, and similar works that artists personally create, but do not include novels.