You're mixing up separate issues, though.

See, the reason you brought up trademarks is because I said names are not copyrightable in the U.S., in response to this:
 

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Any distinctive element is protected. Naming a planet Coruscant or Tatooine, naming a fuzzy species a Wookie or Ewok, those are enough to classify something as a derivative work of the Star Wars universe.

This is not a statement about trademarks at all, because there is no such thing as a "derivative work" in terms of trademarks. It's clearly about copyright, where "derivative works" are an issue. So when you respond to me saying that names are not copyrightable in the U.S. by bringing up trademarks, that's completely irrelevant, a non-sequitur.

Yes, fangames especially do, very often, infringe trademarks. The worst of this is statements like "I do not own this game, XYZ does". But it's important not to confuse this very separate issue with copyright. Trademark infringement is not an inherent part of any cloning process, and not directly related to it; it can be avoided simply by not using the names in such a way that someone might reasonably infer that the owner of the trademark is responsible for the game. In any edge case, just put up a disclaimer (like every company does when comparing their products to their competitors'), and you're good.

(Note: I'm of course still not a lawyer and this is of course still not legal advice.)

While it can be fun to split hairs, there are many different sections of IP law that are all interrelated.  That's partly why they're generally bundled under the term of IP law. 

It isn't just the big three of copyright, trademark, and patent. There are laws about trade dress, trade secrets, author's rights, and "moral rights" and "related rights" and "database rights". There are laws about dilution (directly, or by blurring, or by tarnishment) that often come in to play. When those are challenged for infringement, there are often laws about unfair competition and deceptive trade practices and economic injury that get invoked. 

The occasional lawsuit regarding them typically covers many different factors of IP law and business law. I don't think I've ever read about an actual case that was exclusively regarding copyright, or exclusively regarding trademark. 

It's not "splitting hairs". Copyright law and trademark law are completely separate from each other. In the United States, the relevant laws weren't even passed in the same decade; copyright law is chiefly governed by the Copyright Act of 1976, and trademark law by the Lanham Act, enacted in 1946.

The only possible relationship copyright law can have with trademark law is that an image might be both copyrighted and a trademark. But that's incidental, and in such a case the two laws affect the image in completely different ways. Copyright law forbids copying of the image, trademark law forbids identifying with the image. These have nothing to do with each other.
 

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It isn't just the big three of copyright, trademark, and patent. There are laws about trade dress, trade secrets, author's rights, and "moral rights" and "related rights" and "database rights".

There is no connection whatsoever between copyright law and trade secret law, or between trademark law and trade secret law. Trade secrets are about, as it says on the tin, secrets.

Trade dress is related to trademarks, but not copyright. It's certainly not related to trade secrets.

"Author's rights" is not a law, it's a copyright term. The same goes for "moral rights" and "related rights". "Database rights" is not one I've ever heard before, but I don't find any reference to a "database rights" law. I assume this must be either a copyright or trade secret term, but I have been unable to verify that.
 

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there are often laws about unfair competition and deceptive trade practices and economic injury that get invoked.

"Unfair" competition: copyright law.

Deceptive trade practices: trademark law.

Economic "injury": depends on what you mean, but most likely either copyright law (if referring to unauthorized competition), or trade secret law (if referring to leaked trade secrets).
 

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I don't think I've ever read about an actual case that was exclusively regarding copyright, or exclusively regarding trademark.

You're not looking hard enough.

https://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits
https://en.wikipedia.org/wiki/Stern_Electronics_Inc._v._Kaufman
https://en.wikipedia.org/wiki/FSF_vs._Cisco
http://www.eura.com/steffen/jura/aktuelles/texte/tony_kellogs_vs_exxon_tiger.htm

EDIT: Just a note, I would be entirely in favor of splitting this whole discussion of trademarks and "intellectual property" into a separate thread, as I maintain that trademarks are completely off-topic in a discussion about clones and game rewrites for the reason I mentioned earlier: any trademark infringement by a clone is completely incidental and not because of the cloning process. It would be just as plausible for something that isn't a clone to be trademark infringement, because that's a question of what it's called and what it says, not what it does.

3 hours ago, JulieMaru-chan said:

I would be entirely in favor of splitting this whole discussion of trademarks and "intellectual property" into a separate thread

This thread is about the wisdom(?) of "rewriting older games." Josheir asked "It seems to me that it would not be allowed because of the possibility that the game could be reissued later."  That's the issue under discussion. Trademark and copyright are both involved in Josheir's question. 

If you want to start a thread about trademarks vs. copyright, you are free to do so.

I agree that trademarks are an issue, but not in the context you brought them up in, Tom. You're mixing together separate issues. Yes, trademarks do affect remakes, in the sense that you have to name your remake something different. But trademarks do not have anything to do with whether or not your remake is "derivative" of another work, which is an issue of copyright.

In fact, if I could prove that I was an alien from Mars who had never heard of Super Mario Bros and I just happened to write a game that is exactly the same, graphics and all, out of sheer chance, Nintendo's copyright would not apply and I would be allowed to distribute that game as I please. But I would not be able to call it "Super Mario Bros" anyway, because Nintendo owns the "Mario" trademark; even if I've never heard of it before, I'm still liable for trademark infringement. This is why you see companies renaming things out of concern for trademark issues all the time. That's how different and disconnected these issues are.

So that brings me back to remakes. What does trademark law mean for remakes? It means that you have to make it clear to your audience that it's an unofficial remake, not created or endorsed by the owner of the original game's trademark. If you make a remake of Transport Tycoon Deluxe, you don't call it "Super Transport Tycoon Deluxe", you call it "OpenTTD". But you also have to keep other trademarks in mind. So if you remake, say, Scorched Earth and call it "Mario's Mushroom Kingdom Blast", the fact that your work is clearly a derivative of Scorched Earth (and not of anything in the Mario series) doesn't help the fact that you're violating Nintendo's trademark.

This is common to all game development, though, and indeed anything at all that involves some kind of brand or name, even mundane things like starting a blog or creating an account on a forum. So does that mean we should bring up random laws that may or may not be relevant to any given remake, like sales tax, export control laws, censorship laws (of oppressive governments), or hate speech laws? Not really. The core of the matter, what actually directly ties in with the question of how to remake games properly, is copyright.

1 hour ago, JulieMaru-chan said:

What does trademark law mean for remakes? It means that you have to make it clear to your audience

More importantly: to the owner of the game you're "remaking."

1 hour ago, JulieMaru-chan said:

that it's an unofficial remake, not created or endorsed by the owner of the original game's trademark.

Exactly. Remaking a game? Don't abuse trademarks associated with the original game.