Eidos Interactive announced recently that its soon-to-be-released shooter 'Roll Call"? is being re-named 'Zero Tolerance City Under Fire"?. This move did not sit well with Randel Reiss, the former president of Technopop (a now-defunct game developer). Technopop developed a game for the Sega Genesis in 1994 called 'Zero Tolerance"?, and Reiss claims that he retains trade-mark rights in that name.
In response to Reiss's cease and desist letter, Eidos apparently pointed out that the Technopop 'Zero Tolerance"? trade-mark registration in the USPTO had been cancelled. While this is not a mere 'technicality"? (as Reiss claims), it demonstrates an important point about trade-marks in various countries (including Canada and the United States), trade-mark users can develop enforceable, unregistered trade-mark rights. Official trade-mark databases obviously only show trade-mark registrations and applications, and do not reveal whether someone is using a mark without registering it. However, if a trade-mark database shows an application or a cancelled registration, that suggets that the mark in question may have been used, or that someone intends to use it "? in other words, that someone else may have unregistered trade-mark rights. On the other hand, there's only so much due diligence that can be done to identify unregistered trade-marks. Eidos cannot really be faulted for thinking that there was no conflicting mark (if indeed that is how it approached the situation), and Reiss will have to show that he has not abandoned the "Zero Tolerance" trade-mark if he hopes to take on Eidos.
Reiss also claims to own the worldwide copyright in the 'Zero Tolerance"? title. This raises another interesting issue, namely whether there is copyright in a game title, but we'll leave that for another day.