Trademark Technicalities and a New Name for “Unwritten”
UPDATE: The poll is now closed. We’re ending a little early since traffic has slowed to a trickle and Unwritten Passage has a commanding lead. Thanks for voting!
Following the success of our Kickstarter campaign, we’ve enjoyed a bit of added exposure. One unexpected side effect of this is that this has also drawn the attention of the “Eye of Sauron”, i.e. the scrutiny of large companies and their faithful legal staff. DC Comics has contacted us and is claiming a common law trademark conflict with our game Unwritten: That Which Happened, and their comic series The Unwritten.
For our part we’d never heard of this comic series before, and our trademark research on “Unwritten” didn’t turn it up originally, although this may have been because we were focused specifically on video games. While a name conflict here still wouldn’t necessarily be a legal issue, DC is claiming that our game uses a “similar art style” and “similar story-telling method”, which would cause consumers to mistakenly believe that our game is actually based on their comic. We leave it to our backers and readers to decide the merit of such a claim for themselves.
That all said, it looks like we need to change the name of the game slightly to keep everyone happy (especially those of us that have whole legal teams on retainer). We’ve narrowed it down to a few choices, but we need your help to make the final call. Vote in the poll below and help us choose the new name for Unwritten!
February 21st, 2013 at 2:22 pm
All of those new choices are terrible. Fight for your true name!
February 21st, 2013 at 2:28 pm
Agreed that the options stink. “Unwritten Trail” immediately made me think of “Oregon Trail”, and while I have nostalgic memories of that game, I don’t think anyone wants the two games to be associated.
February 21st, 2013 at 3:18 pm
That was my feeling too.
February 21st, 2013 at 2:25 pm
I voted option 2, but not thrilled by the choices.
How about Unwritten Passage. Implies both a literary meaning and also time passing.
February 21st, 2013 at 2:29 pm
Just saw ‘Unwritten Passage’
Probably the best so far.
February 21st, 2013 at 2:30 pm
I like this, but my only concern is that there is a website that already has that name.
http://unwritten-passage.tumblr.com/
Of course every combination of words is taken in some way, and it seems unlikely that this would cause a legal clash.
I’m going to add this to the list.
February 21st, 2013 at 2:33 pm
Yea, what a hard spot to be put in as things wrapped up. Probably a few things using it but was the first thing that entered my head when I visualize the game.
February 21st, 2013 at 3:05 pm
Passage is cut and above the best name on the list. Voyage implies something nautical to me (spoiler alert?); and that’s what this game is. Summarizing the traversal of time, space, and the reference to a “passage” in a story is absolutely perfect. Please go with this.
February 21st, 2013 at 2:27 pm
“Trail” sounds too “Oregon Trail,” a “voyage” seems too “ocean journey,” and “stage” = “stage coach” or “on stage.” Could you do something like “Unwritten Journey” or “Unwritten Migration” (like the migration across the land bridge between Russia/Alaska) or “Unwritten Sojourn” or “Unwritten Pilgrimage” (I mean, we are going to travel to meet the god.)? Of course, _I_ have no crack team of legal flunkies!
Also, congrats on making your goal! Woo-hoo!
February 21st, 2013 at 2:28 pm
Haven’t voted cause I don’t particularity like any of the options.
Unwritten Path?
Unwritten Past?
Unwritten Journey?
Unwritten Psalm?
Sorry about the legal trouble, seems pretty flimsy. I don’t see and pantomime puppets in their comic
February 21st, 2013 at 2:35 pm
A few of the suggestions here we considered but haven’t been able to do because they brush up against other trademarks. We’re a little conservative right now… I hope understandably so
February 21st, 2013 at 2:36 pm
While I do not think their case has merit, I do not think you should fight them. That being said …. those names are awful. How about ”The Unwritten Stories” or ” That Which Happened; Unwritten” – leaving off the the, and changing the name to the phrase and making unwritten a subtitle.
February 22nd, 2013 at 3:18 am
I would triply vote for changing the subtitle to the name. ‘That which happened’ is a great name. Perhaps a subtitle something like ‘An Unwritten Story’.
Otherwise the best option I’ve seen on this page is ‘Unwritten Past’, which is nice because it is very suggestive, and contrasts semantically with ‘That which happened’, perhaps even more than it did originally. You can change the past, but it already happened.
Anyway, sad news, it’s a tenuous case, but I understand the desire not to get bogged down in legal matters.
Good luck!
February 21st, 2013 at 2:36 pm
I voted for “passage” because it’s the only noun that you could sensibly apply the adjective “unwritten” to.
About the Unwritten comic, I’ve read several issues, and the font design of the Unwritten game logo is so close to the logo on the Unwritten comic that I originally assumed it was a video game based on the comic book. So there you go, confusion in the marketplace. (Not that that makes it less of a hassle for you guys at Roxlou, sorry!)
February 21st, 2013 at 2:38 pm
I went with Unwritten Voyage, but if Id been asked for a suggestion I would have said ‘Unwritten Saga’
February 21st, 2013 at 7:03 pm
Unwritten Saga is what I had in mind as well.
February 21st, 2013 at 2:38 pm
Hmmph… sorry y’all ran afoul of the legal harpies.. I liked the name just fine as it was…
It seems to me you could prove there was no commonality between the the game and the comic, but then you’d be spending your time & money in court rather than working on this really cool thing you’ve created…
February 21st, 2013 at 2:39 pm
I am for just “That Which Happened”
February 21st, 2013 at 2:46 pm
Same here, if anything that seems to lend a greater sense of ‘destiny’ than the original name.
I’m surprised voyage seems to be doing so well in the vote, seeing that it specifically means ‘a journey by boat’, which doesn’t actually reflect the game :S
February 21st, 2013 at 2:43 pm
Well, “Unwritten Trail” sounds like somebody who doesn’t know the word “Unmapped”. “Unwritten Stage” sounds like a disclaimer that the game is unfinished.
“Unwritten Voyage” just doesn’t sound right, it would be “Unrecorded Voyage”.
“Unwritten Passage” (did you consider “Unwritten Chapters”) at least keeps some continuity with the idea of a story not yet written, so it would be ok.
February 21st, 2013 at 2:44 pm
I actually think the best part of the name is the subtitle “That which happened.” Have you considered just … promoting it to full title?
February 21st, 2013 at 2:53 pm
This was actually the original title of the game, but we made it a subtitle for a number of reasons. I’ll always be fond of “That Which Happened” on its own, but at this point we need to keep “Unwritten” in the title because it’s attached to the exposure we’ve gotten.
I love all the feedback by the way. “Unwritten Passage” is my personal favorite right now, and that was suggested here in the comments.
February 21st, 2013 at 3:07 pm
Assuming you change the logo artwork; as per above, to be more distinct from the comic ‘The Unwritten’ — here are some suggestions. First – “That Which Happened: Unwritten”. This would probably work if you changed the logo and be just fine. That Which Happened is a perfectly fine name, and you could still use the word Unwritten.
Other ideas:
Not Unwritten: That Which Happened
!Unwritten: That Which Happened
That Which Was Unwritten
That Which Happened: Unwritten Journey
That Which Happened: Unwritten Trail
Unwritten Lost: That Which Happened
Lost, Unwritten: That Which Happened
The Trail: Unwritten – That Which Happened
The People: Unwritten – That Which Happened
The Journey: Unwritten – That Which Happened
No offense, but -any- of the above options are significantly less of an eyesore then any of the options in the voting queue.
February 21st, 2013 at 3:10 pm
commas, hyphens, exclamation points! You forgot semicolons…
February 21st, 2013 at 3:17 pm
Incidentally “Commas, Hyphens, Exclamation Points!” is the name of my new band. My new band without other members. Or musical instruments. At band practice I just sit very still and try not to fall asleep.
February 21st, 2013 at 3:30 pm
keep practicing, Joe. our pledges are counting on it.
February 21st, 2013 at 2:44 pm
This might be a blessing in disguise, as “Unwritten Passage” has a very neat double-meaning being related to both writing/speech and travel. Seems to fit perfectly.
That, and while I’m not marketer “Unwritten Passage: That Which Happened” seems to flow far better; I think it has to do with the balancing of syllables. I hope more people vote for that option.
February 21st, 2013 at 2:49 pm
“Blessing in Disguise” might very well be the secret motto of this project. Much has “gone wrong”, but in the end things keep “going right”.
February 21st, 2013 at 2:45 pm
Voyage is highly suggestive of seafaring. I don’t like it. Of the options, I picked Passage, but I think Journey is better.
Lame thing for DC to do. As punishment, I will not like Batman for one day.
February 21st, 2013 at 2:48 pm
No, don’t do that to yourself! Batman’s a dreamboat.
February 21st, 2013 at 2:53 pm
I quite like “Saga” or “Journey” which people have already suggested.
Also, your vote tool is a little broken: there’s nothing stopping anyone from voting multiple times.
February 21st, 2013 at 2:54 pm
Thanks, I’ll look into that. I didn’t write it and I thought that feature was built-in.
February 21st, 2013 at 4:22 pm
Looks like the “block multiple votes” option was off by default. Should be fixed now.
February 21st, 2013 at 2:54 pm
The new options kinda take a lot away from it.
Maybe “Better Written”.
If you’re going to cave for simplicity’s sake, go with something like “The People Said”, or something, that really grabs onto the plot.
Maybe “Unwritten Tales”, or “The Voice and the Journey”, or “The Story of Us”. “Voices on the Wind: That Which Happened” maybe.
February 21st, 2013 at 3:01 pm
I voted for Unwritten Passage, but I would actually prefer Unwritten Saga or better yet Unwritten Exodus. Definitely not Unwritten Voyage, which is, unfortunately, in the lead as I write this.
February 21st, 2013 at 3:03 pm
For the record, I thought about suggesting “Overpaid Wastes of Oxygen in an Office” as a new name, but I figured DC’s legal department wouldn’t have much trouble finding prior art on that too.
February 21st, 2013 at 3:09 pm
Based on what I’ve seen of the game, it pulls from a lot of different cultures. I would guess they would have a oral tradition of story telling which means it would go unwritten. I liked the idea of it being unwritten and the phrase passage can apply to time, movement, and a portion of a song or tale that went forgotten.
Other idea could be Unwritten Peoples: that which happened. Since the player is given a kinda blank slate and is formative in forming the tribes story and tradition.
February 21st, 2013 at 3:13 pm
Another good idea.
February 21st, 2013 at 4:43 pm
The new options for voting don’t seem that great, but maybe I just got used to Unwritten. :/
I like Unwritten People(s) or Unwritten Tribe, to remind players that they’re creating/meeting the destiny for their nomads.
Unwritten Journey is good, to focus on the trip, and simply That Which Happened would make the title stand out from games.
February 21st, 2013 at 3:21 pm
I vote for “Unwritten Saga”
February 21st, 2013 at 3:23 pm
What about “Unwritten Journey?” None of the other ones really have a nice ring to them.
February 21st, 2013 at 3:39 pm
“unwritten passage” my favourite.
“Voyage” carries too much association with the sea.
Also “unwritten passage” flows best when read aloud, and the word passage has double meaning of travel and writing/speech which seems perfect for this game.
February 21st, 2013 at 3:52 pm
My thoughts for alternative titles went towards a literary angle:
Unwritten Chapter
Unwritten Page
Unwritten Story
Unwritten Tale
Unwritten Odyssey
February 21st, 2013 at 7:27 pm
These are some good name add them to list.
February 21st, 2013 at 4:07 pm
I voted for Unwritten Passage, though to be honest I think just dropping the Unwritten part and going for “That Which Happened” would probably be the best choice of all (if we assume just telling DC to stuff it and keep the original name).
February 21st, 2013 at 4:10 pm
I just voted two or three times, thinking my vote hadn’t stuck. Just thought I’d warn you, this election is easily rigged!
February 21st, 2013 at 4:21 pm
Looks like the option to block multiple votes was “off” by default.
Should be fixed now!
February 21st, 2013 at 4:39 pm
unwitnessed. that which happened.
or just plain simple
That which happened
February 21st, 2013 at 7:26 pm
Of the choices given, I’d say Unwritten Passage. Personally I like best the suggestion of calling it “That Which Happened: An Unwritten Passage” or maybe even “A Passage Unwritten” or something like that.
February 21st, 2013 at 7:26 pm
Unwritten Journey?
Otherwise Unwritten Voyage for me.
February 21st, 2013 at 8:36 pm
+1 to simply reversing the titles components, ‘That which happened’ would be a brilliant title and if you want to keep the unwritten part, just append it. Still seems like DC are being incredibly petty.
February 21st, 2013 at 11:48 pm
I was just over at Amazon, and came across an adventure game called The Book Of Unwritten Tales. It looks like you’re leaning towards ‘passage’ anyway, but I just wanted to let you know. As for an actual suggestion, how about That Which Happened: The Unwritten Passage? Or the other way around, The Unwritten Passage: That Which Happened. Or, if you prefer your pants to be fancy, what about Unwritten Analecta: That Which Happened. (Analecta means a collection of excerpts from a literary work. Which kind of works with the concept of story events which will be collected in the game. Analects means the same thing, and doesn’t light up the spell-checker, if you like the sound of that better.)
February 22nd, 2013 at 1:47 am
Agreed with the others, voted for “Passage” but thought really all the names were much worse than the original.
I think you should fight them on this, a name is an important thing and “Unwritten” isn’t exactly something DC invented.
February 22nd, 2013 at 5:17 am
I voted for voyage. However, I think that “The Unwritten …: that which happened” would be better… basically add The to the beginning
February 22nd, 2013 at 7:04 am
You can’t avoid a trademark issue by adding “The” to the front, especially since the work in question is already called “The Unwritten.”
(Even though my not-a-lawyer understanding of trademark law is that you cannot sue someone for trademark infringement if they are in a different product category, and video games are definitely in a different product category to books, unless DC also purchased video game trademarks. So it sounds to me like this is a bogus threat.)
February 22nd, 2013 at 7:01 am
Bummer. Well, I want to add my support for “Unwritten Journey” — as many have suggested, that is far better than any of the four choices. I also second the idea of just calling it “That Which Happened.” I always loved the subtitle. It’s just a brilliantly original way of saying “a story” in the most general sense, and it’s kind of quirky.
Put “Unwritten Journey: That Which Happened” and “That Which Happened” up and ask for a re-vote.
February 22nd, 2013 at 7:29 am
More I-am-not-a-lawyer notes on United States trademark law. I might be wrong. Note that I am not a lawyer. I just read the Internet.
The USPTO gives a classification scheme for goods:
http://www.uspto.gov/trademarks/notices/international.jsp
Software (including computer games) are in Class 9, whereas books (including comic books) are in Class 16. It is perfectly legal to produce a product in Class 9 with the same name as an existing trademarked product in Class 16. Just like I could make a food product called “Portal” and not get sued by Valve. This site (http://tess2.uspto.gov/netahtml/tidm.html) allows you to search for product categories such as “computer game” and “comic book” and it will tell you their category.
Also, for what it’s worth, I don’t think the art style of the comic looks anything like your art style. It is likely just lawyers trying to do what lawyers do and scare you. Having said all that, dealing with angry lawyers is not fun, so it’s probably a good idea to change the name and avoid the hassle all the same.
February 22nd, 2013 at 9:46 am
There is some language in the law that says that if a trademark in another group causes significant consumer confusion you may have a claim. From what I can tell this is intended to put a stop to people intentionally trying to trick consumers, like if I were to write a mystery novel called “Ax Body Spray: Blood in the Spring” just so customers that enjoy dousing themselves in noxious man perfume would buy my book on false pretenses. This is why they talk about our game having “similar art styles” and “story telling methods” to the comic, because otherwise there would be no claim.
That all said, this is the right call for us since we have a responsibility to our backers and the money they raised for us. Leaving any legal issue (no matter how murky) over our heads just felt like an irresponsible risk.
February 22nd, 2013 at 9:59 am
Thanks everyone for voting and for suggesting new names! We just closed the poll on the website since traffic had slowed to a trickle and “Unwritten Passage” had a commanding lead.
An update will follow once we’ve adjusted the poster designs and the project logo. We’ll be using the new title as a jumping off point, but we may adjust it a bit as we start using it and figure out how best to make it sing for us.
In the meantime, don’t feel bad if your title didn’t make it onto the poll. Many ideas had to be left off, but not for creative reasons. We had to be extra sensitive to other trademarks, not only for legal reasons, but also so we don’t lose our own identity by associating too closely with other, bigger games. This was the number one reason we didn’t pick some of the great suggestions sent to us by email, twitter, Facebook, the website, and the Kickstarter.