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The basic Trademark Class for a video game depends on the type of video game. Generally speaking, most often, computer-based video games involving software are listed in Class 009 and more traditional video game machines are most often registered in Class 028. There are other Classes that can be used in relation to video games. These include Classes 041 and 042 which are often listed if there are video-game-related services being trademarked and Class 016 for books and literature featuring video game characters. As can be seen, trademarking can be complex. So, if you are seeking to trademark a video game, you need the legal help and guidance of a proven and experienced trademark attorney. Call Revision Legal at 231-714-0100 or 855-473-8474. Here are a few things you should know if you are seeking to trademark a video game.
What am I trademarking?
Trademarks are symbols, designs, logos, words, or phrases that identify your company/business as the commercial source for the product (in our case, your video game). So, you are trademarking the video game name, a logo, a design, or something similar.
What am I NOT trademarking?
You are NOT trademarking aspects of your video game like artwork, music, characters, story, and things of that sort. Those are given legal protection through copyright law. Trademarks are about selling goods and services. Artistic aspects of your video game are embedded in what you are selling — which is a video game.
What is a Trademark Class and why do I need one?
Once you have created and developed your trademark, the trademark should be registered with the U.S. Patent & Trademark Office (“USPTO”). There is a part of the USPTO application for registration that requires the applicant to list the Trademark Class with which the trademark will be associated. For example, if you are selling soap, you must identify the Trademark Class for the soap you wish to sell and on which your trademark will be placed. There are 45 general Classes. In brief, then, you need to identify a general Trademark Class because, without one (or more), the USPTO will reject your application to register a trademark or — and this is important — if not rejected, your registered trademark will not protect what you are actually selling.
What about subclasses?
More complicated than choosing the main Trademark Class is choosing the Trademark Subclass (or classes). To continue the soap example, the USPTO provides subclass designations for all the different types of soap like hand soap, liquid soap, laundry detergent, soap for pets, etc.
With respect to video games, here are just four examples of Trademark Subclasses directly related to software-driven video games (within the main Class 009):
Contact Video Game Trademark Attorneys at Revision Legal For more information, contact the trusted Video Game Trademarking Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.
Most professional video game brands require registration in multiple trademark classes. Class 009 covers the software itself — the downloadable or physical game. Class 028 covers arcade machines and traditional game hardware. Class 041 covers entertainment services, which applies when your brand is associated with esports events, streaming, or online gaming services. Class 042 covers software as a service (SaaS) and cloud-based gaming platforms. Class 016 covers books, strategy guides, and publications featuring your game’s characters or universe.
Registering in only one class when your brand operates across several of these categories creates significant gaps in protection. A competitor could register a confusingly similar mark in a class you skipped and use that registration to operate legitimately in that space, or to threaten your ability to expand into it. A trademark attorney experienced with video game brands will conduct a full analysis of your current and planned business activities and recommend the appropriate class coverage from the outset.
Video game developers often confuse what trademark law protects versus what copyright law protects. Trademarks protect the brand identifiers — the game title, studio name, logos, and slogans that tell consumers who made the product. Copyright protects the creative expression — the artwork, character designs, storylines, music, code, and audiovisual elements. These are separate bodies of law that work in tandem.
Registration of both is important. A federally registered copyright allows you to file suit in federal court and recover statutory damages (up to $150,000 per work for willful infringement) and attorneys’ fees — remedies that are not available without registration. A federally registered trademark gives you nationwide priority, the presumption of validity, and the right to use the ® symbol. Neither registration replaces the other. A video game lawyer will typically recommend pursuing both as part of a comprehensive IP protection strategy.
The USPTO will refuse to register a trademark that is “likely to be confused” with a mark already on the Principal Register. For video games, this analysis applies not only to identical titles but also to titles that sound similar, look similar, or convey a similar commercial impression in the same or related goods classes. A game called “Warcroft” may face a refusal based on likelihood of confusion with “Warcraft” — even if the games are somewhat different in style and genre.
A thorough clearance search before you invest significantly in a game title is essential. It should cover: the USPTO’s TESS database for federally registered and pending marks, common law uses on the internet and in app stores, prior trademark litigation involving similar names, and international registrations if you plan to release in foreign markets. Discovering a conflict late — after marketing materials have been printed, pre-orders have been taken, and the domain name has been purchased — can be extremely costly. An experienced trademark attorney performs this clearance work as standard practice before filing any application.
Video games are inherently global products. If you plan to release your game in the European Union, the United Kingdom, Japan, South Korea, or other major gaming markets, you will need trademark protection in those jurisdictions as well. U.S. federal registration does not extend outside U.S. borders. Options for international protection include national applications in individual countries, filing through the European Union Intellectual Property Office (EUIPO) for an EU-wide trademark, or using the Madrid Protocol — an international treaty administered by the World Intellectual Property Organization (WIPO) — to file in multiple countries through a single application based on your U.S. registration. An attorney with international trademark experience can help you prioritize markets and structure your global IP protection efficiently.
Registering a trademark is one of the smartest investments you can make as a business owner. A trademark protects your brand, gives you exclusive rights to use your mark in commerce, and provides significant legal advantages — including a presumption of ownership and the ability to bring infringement claims in federal court. But many business […]
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