Hello,
I created a free visual novel called Hitogotchi, with its story being inspired by Tamagotchis (but not mentioning anything about Tamagotchis in the game). I'm currently working on its sequel, which I am aiming to sell commercially.
Would I be infringing on the Tamagotchi trademark if I continue to include Hitogotchi as a name for the game because of how similar they sound?
OnionBlaze, what is the name of your state or, if not in the US, what is the name of your country?
Despite what others might say, "forum shopping" can be smart, especially when it comes to questions on IP laws. I have discovered in looking at answers provided to IP questions on other legal websites that the responses elsewhere are wrong more often than they are right. There does not appear to be anyone on the other forums familiar with IP laws.
I am providing some links at the bottom of my post that you can use to learn more about trademark law and the central factor that governs trademark infringement actions, which is "consumer confusion."
Your use of Hitogotchi potentially could cause consumer confusion and could lead to legal issues for you later. The bottom line is that, if the Tamagotchi trademark holder believes your mark infringes, whether it does or not, the trademark holder can pursue a legal action against you. It is always best when choosing names to choose ones that are unlike all others in the marketplace so there is no risk of infringing on the rights of others.
The purpose of trademarks is to distinguish the products and services of one company from those of all others, so consumers are not confused into thinking that one company's products or services are that of another company's products or services. When someone is looking to purchase Adidas, for example, they want to know they are actually buying Adidas. The companies who have tried to mimic the appearance of the Adidas marks have found themselves in court fighting infringement suits.
There are several factors that the United States Patent and Trademark Office's trademark examiners will look at when determining if one mark infringes on the mark of another. These factors include the similarity in sound between the marks, the similarity in appearance between the marks, the meaning of the marks, the design of the marks, the mental reaction of consumers when looking at the marks, and the similarity in the goods and services being offered. The greater the similarity in one or more of these factors, the greater the likelihood that consumers will be confused as to the origin of the products/services being offered.
In a trademark infringement action, a court looks at these same factors as well as the strength of the marks involved in the action, how common the words in the marks are in the marketplace, and proof of actual confusion generated by the use of the marks. Again, trademark infringement actions will center on consumer confusion.
Here are the links, the first to the USPTO on possible grounds for refusal of a registration of a trademark, and the second to the Trademark Examiners Manual, where you can see what a trademark examiner looks at when an application for trademark registration is up for review.
USPTO Possible Grounds for Refusal:
https://www.uspto.gov/trademark/additional-guidance-and-resources/possible-grounds-refusal-mark
Trademark Examiners Manual:
https://tmep.uspto.gov/RDMS/TMEP/current
You can review the specifics with a trademark attorney in your area for a personal determination of the risks you face should you go ahead with plans to use Hitogotchi in your novel. Good luck.
