is this trademark infringement?

hello i own sexyempires.com/net/org/info and there is a game called "wet: the sexy empire" or "lula: the sexy empire" ...the game that already exists is basically a PC "strategy" ...if i make an MMO sexyempires.com (i have a script) game that is nothing like wet/lula can they sue me just because its a game with a similar name?

 

It is certainly a possibility. The other party used a similar name before you for a game. That would establish certain priority rights for the usage . Infringement does not have to be exact, rather, is it possible it could cause a likelihood of confusion? If would really come down to whether or not the other party "thinks" it is infringement and is willing to take it to court and force you to spend vast sums of money to argue it isn't infringement.

 

I would be more worried that they would Trademark the name 'sexy empire' or 'sexy empires' if that was the case they could very well force your Domain Registrar to transfer the domains to them.

 

That is a good question. If it's in the Trademark search then obviously it is trademarked and your screwed. If not then it would be a good idea to do it yourself.

 

You don't need to register a trademark to establish rights. You can't go out and federally trademark something already in use and then expect to stop the prior usage.

 

What do you mean? So lets say someone was doing his idea 4-5 months before his idea, his blew up and was mainstream while the guy before didn't do shit with his idea...The guy that didn't do shit with his idea established the rights before him...So that guy could sue the mainstream guy...

 

First usage establishes rights. If the person was to abandon the usage, then they lose their rights after a period of time. Since you have common law trademarks in the US, you need to have a trademark search done. This checks for usage other than the USPTO - but still isn't a guarantee that they will find all existing usage. So yes, if a small website that was using a mark before some large company started using it (in the same classification) they would likely be infringing upon the first usage and could be sued. Large companies generally do a pretty extensive search before using a mark - but that isn't always the case. A large company can decide they will bury someone with legal fees in a lawsuit (which would run hundreds of thousands). I just settled such an infringement case against a large company that was attempting to infringe upon my existing usage.

Also remember that trademarks are granted by classification (and there are over 40) so there can be different trademarks on the same term (like myspace) - each having certain rights to usage. Famous marks (like microsoft) have broader protection. Trademark litigation is very expensive. Often the outcome is decided on which side is able to spend the most money. Unless you are a big company, it often doesn't make sense to spend a half million proving you have rights to a mark.

 

Nice info, Thanks