Video game name trademark question

[orod001]

I'm working on a video game that I'm planning to sell and I'd like to use a certain name, lets call it "X". I did a trademark search through the USPTO and nothing came up. I also did a Google search and found one free flash game that you can play online using the same name. The game doesnt use the "tm" symbol, nor does it suggest in any way that I saw that it's claiming to be a trademark.

The question is, can I use the name and trademark it? As a layman, it seems that a free product wouldnt qualify as "trade", hence no trademark. Is that incorrect? Does he have a trademark even if not claiming "tm" and giving away the product for free?

 

[divgradcurl]

I'm working on a video game that I'm planning to sell and I'd like to use a certain name, lets call it "X". I did a trademark search through the USPTO and nothing came up. I also did a Google search and found one free flash game that you can play online using the same name. The game doesnt use the "tm" symbol, nor does it suggest in any way that I saw that it's claiming to be a trademark.

The question is, can I use the name and trademark it? As a layman, it seems that a free product wouldnt qualify as "trade", hence no trademark. Is that incorrect? Does he have a trademark even if not claiming "tm" and giving away the product for free?

What country are you talking about?

 

[orod001]

What country are you talking about?

country = U.S.

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[divgradcurl]

I'm working on a video game that I'm planning to sell and I'd like to use a certain name, lets call it "X". I did a trademark search through the USPTO and nothing came up. I also did a Google search and found one free flash game that you can play online using the same name. The game doesnt use the "tm" symbol, nor does it suggest in any way that I saw that it's claiming to be a trademark.

The question is, can I use the name and trademark it?

Maybe. It would depend on whether or not the other user has acquired trademark rights, and how broad those rights might be.

As a layman, it seems that a free product wouldnt qualify as "trade", hence no trademark. Is that incorrect?

That is not correct. It may acquire trademark rights even if used for a "free" product. I don't think anyone would question whether or not Firefox is trademarked, for example.

Does he have a trademark even if not claiming "tm" and giving away the product for free?

There is no way to tell from your description.

 

[orod001]

Maybe. It would depend on whether or not the other user has acquired trademark rights, and how broad those rights might be.

Thanks for your reply. How can I tell if he has acquired trademark rights?

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