Trade Marks – The Importance of Early Legal Advice

It’s been reported that a much anticipated in-development video game that was announced over two years ago (which has already seen it’s launch date delayed by a year) has been delayed yet again.

‘The Day Before’ was due to launch on 1^st March 2023 (having missed its initial launch date of June 2022), but now it’s developer, Fntastic, a Singaporean headquartered but fully remote company, has released a statement that the game has now been delayed by a further nine months to November 2023.

The reason for this sizeable delay? Trade marks. Or more precisely, the developer claims it did not file an application for a trade mark of the game’s name and now someone else has done so instead!

It is certainly true that somebody did indeed file for ‘The Day Before’ trade mark on 27^th January 2022, mere days after the game was first announced. The developer maintains that they were not aware of this until the 19^th January 2023 when the owner of the trade mark contacted the developers with a cease and desist request.

The implications for this wholly avoidable mess, other than the lengthy delay of the game’s release, are unclear at the moment. It’s probable that a settlement and coexistence agreement will be reached, resulting in costs that will be of an order of magnitude higher than what early and prudent legal advice in relation to registering a trade mark would have cost the developer.

It’s even conceivable that if a settlement cannot be reached between the game’s developer and the trade mark owner that a full rebrand of the game will be required. This will have huge financial implications (and could delay the game further) from a software coding, marketing and branding perspective for the developer but would also incur significant reputational damage among investors, potential and current employees as well as video game fans.

Early clearance searches of existing trade marks and filing your trade mark application in the correct classes of goods and services at the earliest possible stage (and definitely before releasing a much hyped, polished and generally impressive announcement trailer for your game!) by our trade mark lawyers can help avoid some very disruptive pitfalls as your product or service moves from conception to launch.

(p.s. Is it just me or could there be other intellectual property issues coming down the line here from a certain Playstation title , currently the subject of an acclaimed TV series?)

If you have any questions in relation to your brand at any stage of your product’s life cycle, contact  us at info@briffa.com

Written by Mark Eiffe – Solicitor