Over the next few weeks I am wanting to make a simple arcade game in order to get some practice in game development. Given I want to focus more on the techinical side of things rather than spend too long on game design (as I keep getting so bogged down in design I find it hard to get started) I was thinking of making an variant of a classic 80s or early 90s game. As this is a learning exercise I would then post it here to GameDev.net, however given my understanding of trademarks, I am unsure exactly as to whether this is possible. Hence my question be asked here. First off, I have read through what I think are the relevant articles at Sloperama (FAQ 39, FAQ 61), and I guess this does just boil down to "Just how closely CAN I copy something and get away with it?" [smile]. I will not be using any copyrighted material from an original game; all artwork, music, sound effects, code etc. would be original. As far as I can see this is a trademark issue. However I am unsure as to exactly what trademark would cover in this case; I'd use different names for the game and characters, but I doubt that is enough. Although I haven't decided exactly what game I will be using, I will use Pengo as my example (as this is a strong contender). For those of you who do not know Pengo, it is an arcade game set in a maze of ice blocks, where Pengo the penguin must defeat the monsters (Sno-Bees) usually by pushing a block (which slides until it hits another block or a wall, squishing all enemies in its path). I wouldn't be planning on making an arcade pefect translation, but how different would the game have to be? For example, could I still use a penguin pushing ice blocks as a gameplay element? I admit I find the penguin on ice aspect pretty cute, which is what is drawing me to Pengo as a prospective game, but that is also why I am thikning it might fall under trademark; maybe I find it cute because the penguin and ice blocks remind me of Pengo? And if this is an issue, would it be fixed by changing the penguin to some other character (say an eskimo pushing ice blocks, or is that still not enough)? I know this is not a cut and dried issue, and is impossible to draw a line somewhere. My gut feeling is that doing something that is even slightly a remake might be too close to trademark infringement, but I'm pessimistic (almost paranoid) by nature. I have seen hordes of clones of Tetris and Pac-man floating around as sample games, but I know that doesn't make it technically okay legally. And while I'm only doing this for learning purposes and the worst that could possibly happen is a cease-and-desist getting me to pull the game, I still want to respect other people's IP and try to ensure that what I'm doing is legal. In essence, is doing a remake of a classic game possible from a trademark issue, and if so how distinguishable does the remake have to be? Thanks in advance for any replies!

This is a copyright issue as it relates to copying a piece of work that is protected by copyright. You could probably use a Penguin provided you don't copy level designs, you come up with some of your own ideas for bonuses/power-ups etc and all the graphics/code/sound are your own work.

Trademark would be the name of the arcade game - you would need to come up with your own name to avoid trademark infringement.

as for copyright you could do pretty much an exact clone/remake, just make sure you don't steal any code or data.
so you would have to write your own music, and design your own levels, and ofcourse draw your own graphics, though if the graphics are simple you really can't avoid looking similar (a simple pong game will always have 2 square paddles and a ball that look pretty much the same).

as for trademarks its just the names, (all names aren't trademarks though)

>trap wrote:
>I wouldn't be planning on making an arcade pefect translation, but how different would the game have to be?

Only a lawyer could tell you that.

>For example, could I still use a penguin pushing ice blocks as a gameplay element?

Can't you come up with a different character and different kinds of blocks?

>I am thikning it might fall under trademark

Explain how this is a trademark issue. The Pengo title, and the image of the penguin character, are trademarks. But how do you support your argument that "a penguin pushing ice blocks" is a trademark?

>is doing a remake of a classic game possible from a trademark issue

Don't use the game's title, and don't use the game's character names, and don't use the game's music, and don't use the game's graphics... And you don't run afoul of its trademarks.

>how distinguishable does the remake have to be?

Hire a lawyer.

Apparently I did a lousy job of writing that article (FAQ 61)- you didn't understand what I was trying to convey at all. You still need to learn about what constitutes a trademark. Beyond that, the essence of your question, "how closely can I copy a game's look and feel" is not one that anybody can give you an answer to (as I said repeatedly in that article). "Too closely, and you can get sued," is the best we can tell you. "Look and feel" is a vague, touchy-feely, principle that's not measurable in a legally exact way.

Thanks everyone!

I thought trademark law covered the prime distinguishing features of a product - the distictive aspects that identify the product to the public. For example, the shade of yellow used in 3M's Post-It Notes, or the shape of a Coke bottle.

What I am not sure about if is trademarks do have to be explicitly registered with the respective Trademark Office of the country the product is doing business in to be valid. I'm sure it helps a lot with any legal challenges if they are registered, but I was of the understanding that if a court found that company B was deliberately trying to make their product look like company As then it still could be a trademark issue even if the look of the product was not explicitly registered.

I also apologise for the rather vague wording of my original post (that will teach me to post when tired!). While I am wanting to work on an arcade game right now, I suppose I am more interested in the hypothetical case of what the legality of remakes is. The more I think about my specific case, I'll probably put so many changes into the game it will be original in its own right. In my case, while I'm likely to go with a "penguin in an ice world", the game itself will not be much like Pengo.

Trap wrote:

>I thought trademark law covered the prime distinguishing features of a product ... What I am not sure about if is trademarks do have to be explicitly registered

OK, so there are things you still don't know about the legal issues involved in the area you are venturing into. Why not buy a good book, and/or hire a lawyer? (^_^)

>I suppose I am more interested in the hypothetical case of what the legality of remakes is.

No need to hire a lawyer if it's just hypothetical, I guess. I'm glad we were able to help you in your hypothetical interest.

Well, it's hypothetical in my case now because I've decided against going a strict remake. In my specific case, since I'm just a hobbyist at the moment doing this for fun and learning, I'll steer away from direct copies of anything (it's more fun that way anyway). But it's clear I'm still a bit clueless on the whole trademark thing, so I guess I still need some answers to the hypothetical question [grin].

I know that when trademarks are usually discussed, they refer to the obivous identifying marks for a product. These include company names titles, names of key characters and their appearance. I also know that there's a difference between registered and unregistered trademarks based on whether they are registered with the trademark office, although I don't know off-hand exactly what difference that makes from a legal perspective (except that registered trademarks are easier to enforce due to them being easier to check if you are in violation of).

The bit I'm unsure of, even after reading about trademarks from a variety of sources, is the "acquired distictiveness" trademark cases, where it is deemed that a product has a certain quality that identifies it to the public. I think a sample case I read about involved a sponge maker, who filed a suit against a rival sponge maker who copied the look and colour of their sponges. I'm not sure if this could apply to games as well, or whether it only does in the most flagrant of cases.

I figure it all goes down to nebulous things such as the intent of the infringer and exactly how identifiable this "acquired districtiveness" is, which would come down to the opinions of the legal experts involved.

I think I've found something at BitLaw that answers my question: Link to TMEP Section 1212, Acquired Distinctiveness or Secondary Meaning [R-1]. Although understanding legalese isn't my strongest skill by any means, what I think it means is that with regards to acquired distinctiveness, there must be a very strong case that the public associates that distinctiveness with a product from a single producer. Thus in terms of computer games, as long as you don't deliberately try to copy the distinctiveness of a well known game, then it isn't likely to be an issue (obviously though a lawyer would be a better judge of this in a specific case). Of course, this is just for acquired distinctiveness trademarks; you also have to ensure you don't inadvertantly use a trademarked name for you game.