Social-gaming company Ever Hopeful Limited has created a series of Hairem Scarem games with different monsters featuring in each one — from vampires to zombies, from cyborgs to internet trolls. The firm has even created a "dripping blood" logo to go with the Hairem Scarem brand. The company's latest creation for the series is an animated character, Spike the Lovable Werewolf.
The company considered getting trademark protection, but a relative of the founder said that this could cost 20,000 pounds and would be difficult to enforce. So it decided not to apply for a trademark. The helpful relative told the firm that in any event it doesn't really need this protection, because it's protected by the law against "passing off."
Also, Ever Hopeful Limited uses consultant developers to design and create its characters but has traditionally engaged them simply on an invoice basis, feeling that the legal expense of entering into contracts with them isn't worthwhile.
The company has invented a new way of rendering its computerised characters, giving much more realism to sequences in which the characters bite their victims. The firm calls this enhanced technology process "the Suarez Effect." It believes that patenting this technology should be possible, because it's ground breaking. It set aside a budget of 5,000 pounds to obtain worldwide patents.
Meanwhile, a crisp-making company making a brand of crisps called Sharem Scarem has written to Ever Hopeful saying that it owns a trademark in Sharem Scarem and telling Ever Hopeful that it must stop using the Hairem Scarem name because it's infringing.
Can you identify any issues regarding the company's intellectual property portfolio?
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Trademark protection doesn't cost 20,000 pounds and would potentially be valuable for the Hairem Scarem game and/or the individual characters such as Spike the Lovable Werewolf and/or the dripping blood logo. "Passing off" is a much harder legal remedy to enforce than enforcing a trademark.
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Ever Hopeful should be entering into written agreements with its developers, assigning all IP to the company; otherwise the consultant developers may end up owning that IP instead of the firm!
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Leaving aside the issue of using Luis Suarez's name without his permission, Ever Hopeful is unlikely to get anything patented worldwide for as little as 5,000 pounds.
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The crisp company is unlikely to be able to win a claim for trademark infringement against Ever Hopeful unless it has a trademark in the "class" of goods that covers the activities of Ever Hopeful. Potato crisps are in Class 29, which doesn't cover software.
