The Trademark Mistake that Almost Doomed Us
With our recent, beautiful update to Magic Towers Solitaire I got to thinking about the history of our longest running game!
The early history of Magic Towers Solitaire included one of the biggest mistakes I made in the early days of Glowing Eye Games. Freshly moving on from being a producer at Glu mobile, I made a mistake that almost sank the game and the company in its tortuous beginning.
Originally, I named the game Tri Towers Solitaire. It was released back in the days of online games created using Adobe Flash. In internet time that feels like ancient history, back in a time when mobile games on tiny screens had only just started to begin their rise to completely dominate the casual games industry. Despite respectfully managing several licensed and trademarked games in my previous job, my naivety and lack of forethought trampled on the toes of a trademark held by a multimillion-dollar entertainment company! That was not a happy place to be, especially when you’re struggling to pay rent.
I distributed the original Tri Towers Solitaire as far and wide as I could in a desperate scramble for revenue to finally start making Glowing Eye Games profitable and stop the impending doom of the company. Despite the game being more casual than the popular online games of the time, it had started to bring in advertising revenue. Maybe, just maybe, this was the game that turned my little one-man company into a viable business.
For a few weeks I saw the number of players rising, with reviews varying from solitaire haters wondering why their beloved games’ site was being polluted with such software to the surprise acclaim of players saying they were glad they’d given it chance. It started to look like that there’d be enough revenue that at least for this month the company might be able to pay me. Finally, I thought I’d found the first sun rays of a bright new dawn and maybe the chance of a buying a new laptop.
However, the sun faded when the lawyers of the legitimate owners of the trademark for Tri Towers Solitaire sent an email. Now if you’ve never received a letter or email from a lawyer, then you might not know how terrifying these pieces of text can be. There were demands for the removal of the game (my only real income at the time) from everywhere it had been distributed and talk of financial damages and compensation. That night was a horrid night, the feeling of finally turning a corner, had been wiped out. Visions of calamity and disaster haunted my dreams.
By the third cup of tea in the morning, in my naivety I had convinced myself it was just a misunderstanding. I emailed the lawyer back and suggested talking to the boss. I don’t remember the exact words that their lawyer used, but it I remember it was beautifully polite. However, it all boiled down to the idea, you’re out of your depth, get a lawyer. The first lesson to pass on is that when a lawyer writes, get your own lawyer immediately.
I liked my lawyer, again he was polite and kind enough to guide me through the process of discussing what was happening. It helped that I bolstered my knowledge with reading around the internet. It was an epiphany to realise how little I knew about trademarks, and at least in the future I’d have a process to work through to avoid problems.
Once their lawyers had a trained counterpart to talk with, it became clear that what they really wanted to do was protect their trademark and demanding compensation was standard. If a company doesn’t protect its trademark, then it can lapse, and if that ever happened to them, there’d be a free for all where anyone could make a product with the same name.
For the record it’s easy to avoid this problem. Simply use the free US government website to search US Trademarks. Although trademarks can exist independently in any country, for most products the USA is a huge market, and most likely if an (English) trademark doesn’t exist over there, it *should* be fine globally. If you aren’t sure then you can search further, but it’s not as easy as checking trademarks in the US alone. I hear the distant echoes of my past lawyer telling me to write that this isn’t legal advice, and you should do your own research, although this has worked for us, so far. It’s worth saying that this is for name trademarks rather than trademarks of logos, they’re a different issue, and I am not commenting about those!
Within a few days I’d changed the name of the game to Magic Towers Solitaire, which along with my apology was a great first step to getting the other side to appreciate that I’d made no real attempt to profit off their trademark and that I wanted to set things right. The thornier issue was that online game distribution, was a bit of a wild west where online games portals just did their own thing. I attempted to the redistribute the retitled game and managed to get a few websites to take down the old ones and replace them with Magic Towers Solitaire. Unfortunately, we had to explain that we needed them to accept that we couldn’t get rid of Tri Towers Solitaire totally. Rumblings of damages, reappeared, but my lawyer came to the rescue with a very simple explanation, yes, I was in the wrong, but in coded lawyer speak, he explained that Glowing Eye Games had done everything in its power to remedy the problem and could barely afford his services. He welcomed their lawyers to go after each of the remaining, offending websites individually.
At that point they relented and once again I was blindsided by their politeness. They accepted my efforts and thanked me. I was utterly relieved. I had a final conversation with my lawyer. I told him that I’d expected this to drag on for a long time. He explained that between my obviously sincere efforts to resolve the problem quickly and the fact that we were a new business their lawyers didn’t really have much to gain by continuing to pursue me. He said fixing the problem quickly was particularly important with them, because it meant they and their bosses could see that I wasn’t trying to profit out of the trademark even though my efforts to resolve all the problems they highlighted weren’t completely fulfilled.
So, for all those game developers who want to avoid this kind of stress, remember to make sure that the name of your shiny new game doesn’t copy the trademarked name of another product. It might be the most important five minute job that you can do! You’ve also got to make sure that it isn’t even close enough to be confused with a trademarked name. I promise you, even though you won’t know it, you’ll have avoided weeks of stress and costs that could have been spent on making and marketing your game.