Video Game Law Blog

April 13, 2012

Earlier this month, ZeniMax Media filed six US trade-mark applications for FUS RO DAH in association with online games and various merch.

FUS RO DAH is a spell used in The Elder Scrolls, and on its own might not be protectable as a trade-mark. To be protectable, it actually has to be used as a trade-mark (i.e. used to distinguish the products and services of ZeniMax). ZeniMax will therefore want to start using FUS RO DAH as a brand, and not just as an element within the game.

The same is true for game characters.  Game companies might have copyright protection for their characters, but to protect the characters as a trade-mark requires use of the characters as a brand. That means using the character’s name or image consistently on merch or on splash screens as more than just ornamentation.

In any case, no corresponding applications for FUS RO DAH have shown up on the Canadian trade-mark database yet, although ZeniMax may be taking advantage of an international convention which gives applicants up to six months to file their foreign trade-mark applications. As long as ZeniMax files in Canada within that six-month period, ZeniMax’s Canadian priority filing date will be backdated to the date of the US application. That means ZeniMax’s applications will have priority even if someone else files a conflicting application in the meantime.