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Trademark Clarification

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danieledeming
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Once against I turn to the collective mind of the BGDF in hopes that their desire for tedious research has previously far outweighed my own...

So, specifically in this case, I want to ask about the TM "DICE BUILDING GAME", as used by WizKids in their Quarriors and Dice Masters games. They have gone through the effort of TMing that specific mark for each of their iterations of dice, dice, more dice, gimme dice, I love dice.

However, and this is where I was hoping for clarification, as I understand TM, CR, etc., am I correct in the following (In increasing order of my confusion):

1) I can use the dice-building mechanic, including exactly as they have, as long as the rules are worded differently, as that would then be copyright infringement.

2) I can use the term dice-building, so long as the art is different, as they own rights only to the mark, or artwork, not the description.

3) I can display a similar mark "Dice Building Game", so long as it does not conflict with their mark as it is described: Direct from the TESS: The mark consists of the words "DICE BUILDING GAME" appearing over five three-dimensional cubes.

Ultimately, I just want to make sure that I can use the term 'dice building game' freely, because there really isn't a good, yet pithy, description of that type of mechanic otherwise.

Thank you all in advance for any knowledge you share. And I'll save you the disclaimers - I do not assume any of you are lawyers. Unless you say so, then I want proof.

Cheers!
-Dan

Soulfinger
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First off, I don't see why

First off, I don't see why you would want to use "Dice Building," seeing as how it is a terrible turn of phrase. I get what they were going for, but you don't build dice. The phrase "Deck Building" makes sense on account of the players assembling decks of cards.

"A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods." It is likely that they have trademarked the phrase itself, just as they have the actual icon.

If you want to create a mark similar to theirs then you will also want to consider the "likelihood of confusion" between their trademark and whatever you are proposing to create. Even a similarly worded phrase can be strong grounds for initial interest confusion. The mechanics of their game may not be protected, but I would suggest that if you are going to use them then the two games should bear no other similarity whatsoever, as you don't want to leave yourself open to a cease and desist over some flimsy technicality.

AdamRobinGames-ARG
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Phrase it differently?

I'm not familiar with the game you mention, but could you use a slightly different phrase that means something similar?
For example:
Dice Construction Game
Dice Pooling Game
Dice Dealing Game

I did some research in how Dice Masters is played and if your really looking for a phrase more suited to the mechanic, then may I suggest:
Dice Combat Game
Dice Fighting Game
Dice Dueling (I find this one sort of humorous since they have a Yu-Gi-Oh themed set)
Dice Battle
Dice Wars

You'll have to check if any of these are trademarked, though.

questccg
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My favorite is...

AdamRobinGames-ARG wrote:
...Dice Wars

You'll have to check if any of these are trademarked, though.

I'd use "Dice Wars". I checked the database and there is a DEAD US Trademark for the term... So that means you can feel free to use it... It was cancelled way back in 2002.

What kind of mechanics does your game have? "Dice Wars"... Pretty self-explanatory if you ask me! :D

danieledeming
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Guys, I do appreciate the

Guys, I do appreciate the comments, but my purpose was to get some clarification regarding the usage of that particular term, not to find an alternative.

Of the options to describe that type of mechanism, it is unique in that it appropriates the established industry terminology of "deck-building" and I think that attributing different terminology for what is essentially the same mechanic - the collecting of dice - would be superfluous if not for their pesky trademark.

I guess my point is that if I don't have legal reasons to avoid using the term at least as description, I don't see a reason why I would; something like 'Dice Collecting' would also work, but I think dice-building sums it up more accurately and concisely.

For posterity, though, of the choices y'all put out there, I'd probably use 'dice construction' because for the purposes of the game, the dice have to be used together to have any effect.

Soulfinger
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danieledeming wrote:I guess

danieledeming wrote:
I guess my point is that if I don't have legal reasons to avoid using the term at least as description, I don't see a reason why I would; something like 'Dice Collecting' would also work, but I think dice-building sums it up more accurately and concisely.

To reiterate and clarify then, there is a definite legal reason for you not to use that term. From their website: "The marks and logos for Mage Knight, Pirates of the Spanish Main, Quarriors, HeroClix, Shuffling the Deck, Dice Building Game, Combat Dial, TabApp, and WizKids are trademarks of NECA/WizKids LLC." So, both the logo and mark are protected, and the mark of "Dice Building Game" is distinctive enough to qualify for protection under US law (or at least nobody here has the legal clout to contest it). You are therefore forbidden from advertising a product with the same or a deceptively similar mark, particularly since you are offering a product within the same consumer market. Should you use their mark, they are within their rights to file an injunction and possibly sue for damages.

[edited to remove my references to service marks, which are for services, not products. Was distracted when typing the first time around.]

azarkon
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Here there be dragons!

First off, TESS shows that WizKids does have a TM for the word mark "DICE BUILDING GAME" with no art attached.

However, just because WizKids has claimed a TM does not mean you can't use the phrase. The trademark might be invalid because it's too generic, your use might qualify as fair use, or your use might not infringe on the TM. For example, if in the copy on the back of the box you have a paragraph that starts with "This game is a dice-building game where players . . ." you might be less liable for a trademark violation.

There's a secondary issue, that, even if it would be OK legally to use the mark, there's still a possibility that WizKids will sue you. Even if you're confident you'll win at the end of the day, a lawsuit can be a huge hassle and expense.

If you're dead set on using "dice building game," the best advice is to consult a real lawyer. Trademark law has a lot of complicated detail (I know, I took a course on it), and offhand advice on an internet forum is simply no substitute for consulting a professional who actually knows it and can apply it to the particulars of your situation.

questccg
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I agree once again with Soulfinger

The term "Dice building" is MORONIC... You don't build dice... Yes it may seem to sound like "Deck building" but again as Soulfinger pointed out, you are actually BUILDING A DECK from all of the available cards. So I believe it is foolish to use an incorrectly coined term just because it resembles that of another properly coined term. Get what I am saying???

Find a better term... Like Dice Drafting. Doesn't that sound more like a game where players roll and choose to collect dice???

Update: if you look up the term "Drafting" you will find that it means to draw or pull or to take. I think this is a much more appropriate term.

Update 2: the term "Drafting" works both for Dice and Cards because you can draw/take from a pool of dice certain dice. Same goes with cards.

danieledeming
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We need to invent a new word...

Suffice to say, I don't want to invite trouble upon myself, nor do I believe Quarriors/WizKids/etc to have the precedent-wielding authority to brand dice-building the term for that particular mechanic and I intend to use the interstices of our beautiful language to otherwise describe my games.

That said, in reference to what quest is saying, I think that dismissing the term altogether is inaccurate.

Aside from the existing link to the established deck-building term, I would argue that the term building describes specifically the interaction between the items being drafted or collected which are inadequate on their own. Dice could be drafted or collected and not used together or not interact at all.

What makes deck-building both accurate and unique is the term deck, which, separate from the plural form of card, specifically describes a group of cards that warrant new definition by their interaction with one another. It's not card-building or cards-building, so it shouldn't be die-building or dice-building.

So what we need is a new word - a die/dice equivalent of the word deck - to describe the collection of dice so that building one makes sense. Because apparently, this is what I do on a Thursday afternoon.

Any suggestions? My best so far is Wurfel-building...it's German.

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