https://archive.org/details/LegalGeekEp70
When a trademark application is filed at the U.S. Patent and Trademark Office, an Examining Attorney working for the Office reviews the application after a few weeks or months to determine whether the application complies with all of the rules for having a trademark. While a search is done by the Examining Attorney for competing similar marks which would create a likelihood of confusion conflict, this search is not always perfect.
Thus, the system also allows for third parties in the public to review all trademark applications that are allowed and file Oppositions to them, if necessary. This process is known as publication in the Official Gazette, and if no Opposition is filed within 30 days, the trademark then registers as finalized intellectual property. While the trademark can still be challenged later, this is the best opportunity to cut off registrations and potential trademark infringements before they occur, in my experience.
As a result, this is precisely the mechanism which HBO, the maker of our favorite series about dragons and kings, uses often and has used against them to try and box out what protection is possible for Game of Thrones and related story items. After all, while HBO's copyrights protect the show itself, it is the trademarks where all the potential merchandising revenue is protected.
Just this month, for example, HBO opposed an application for a video game called "Game of Trolls" from Jumpstart Games, Inc., which is intended to be a tie-in for the upcoming DreamWorks movie Trolls. Opposition tends to be a somewhat costly mini-litigation type process, which means small game companies may be inclined to back down rather than fight, even in a gray area like using the word "Game of" in a video game context. Of course, with DreamWorks possibly backing Jumpstart Games in this fight, that might not be what happens here. When two giants get involved, it can be as bloody as the red wedding.
HBO has aggressively defended and tried to expand its rights, with prior recent oppositions to other marks like "Gamethrone," "League of Thrones," and "Game of Drones." Of course, HBO files their own applications and is not immune from being opposed themselves, as was the case recently when the application for "Three-Eyed Raven" was opposed by Ravenswood Winery. With all the Opposition proceedings at the Trademark Office, HBO's legal team likely gears up like the Battle of Blackwater for all this work.
The Bottom Line: HBO will win some of these Opposition battles and lose others, but this is a great example for companies who want to learn how to aggressively pursue and defend what rights can be had on a popular pop culture item like Game of Thrones. Plus, small designers and developers would be wise to know what battles might await in trademark realm should they enter business, especially when trying to profit in some tangential manner off someone else's IP.
And while they do all these legal battles in the background, we can simply keep on enjoying the Khaleesi, the dragons, and all that death.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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