Don’t leave it until The Day Before launch! Video Game Trade Marks

Rumours have been circulating around the legitimacy of upcoming open world survival horror game “The Day Before” – speculation around whether the game exists or not seems to be fuelled in part due to a lack of advertising and gameplay footage released by developers Fntastic, but also due to the recent removal of The Day Before from the Steam Store.

According to comments made by the developer via the Fntastic Twitter page, the removal of the game from Steam was the consequence of a trade mark dispute revolving around the name of the game.

The Day Before was first announced in January 2021 – at that time, Fntastic was aware that The Day Before trade mark was available, but they did not file a trade mark application. A third party then took the opportunity to file a trade mark application for The Day Before, blocking Fntastic from making the application themselves, and also allowing the third party to ask Steam to remove the game from their store.

It appears that Fntastic are now having to take steps to rectify this issue, and it remains to be seen how this matter will be resolved, though Fntastic have very recently released some gameplay footage, which could point to the fact that the trade mark issue is now indeed over.

A cautionary tale for video game developers?

Although this news story involves a US trade mark, this is a cautionary tale for anyone who is looking to launch their game on Steam or who is UK based and attending UK games festivals as part of their advertising and marketing strategies.

Before announcing your game, or conducting any sort of major marketing or branding campaign, you should ensure that there are no marks already registered that would result in your game infringing on someone’s trade mark. This should be done as early as possible in the development cycle (and not the day before launch!).

You can do this by conducting a brief google search to ensure that there are no other games that have the same name, or by checking the UK and US trade mark registers to see if there are any identical trade marks out there for video games or software. You should also be aware that some trade marks that are similar could also pose an issue and should be thoroughly checked out.

Lawyers can assist with carrying out “clearance searches” – checks of the trade mark registers to identify any potentially problematic trade marks. As part of these checks we can advise on filing strategy, how to mitigate risks, or simply let you know whether the name would be too risky. It’s better to know before you spend lots of money on marketing and branding, so you can allocate your resources in the most efficient way.

Get in touch with us for a free initial chat about trade marks and other ways to protect your video game, or check out our blog on How to get a trade mark for a video game.

Written by Chloé Vertigen – Solicitor