Pryor Cashman Associate Parmida Enkeshafi and Partner Simon Pulman co-wrote an article for Law360 about the trademark challenges faced by Balatro, a poker "roguelike" video game, as it prepares for its mobile release on the iOS App Store on September 28. Their piece highlights the complexities of trademark protection for video games amid competing search results and provides recommendations for game developers on how they can avoid potential consumer confusion.

In “Video Game Release Highlights TM Pitfalls Of App Store,” Parmida and Simon explain how Apple's search policies can create challenges for trademark protection, as consumer confusion can arise from hidden keyword use.

When it comes to keyword advertising, it matters not that a trademark is unseen by the public eye.

[…] The heart of the matter is confusion, which need not rest on a trademark's visible display but on whether consumers are tricked into thinking they are purchasing from the rightful owner. The idea that some hidden keyword use does not violate the law is rejected outright.

They also examine the hurdles Balatro may encounter when pursuing a trademark infringement claim against competing apps:

Consumers in the iOS App Store are presented with not only an app's name but also its icon and detailed descriptions. These visual cues, together with clear distinctions between products, make it implausible that users would be misled — even if Balatro's trademark was used as a keyword. The iOS App Store's transparent setup renders this case quite different from the murkier situations where hidden keywords might dupe consumers. Here, the marketplace allows for informed decisions, reducing any risk of confusion.

Lastly, Parmida and Simon offer key recommendations for video game developers to safeguard their brands from potential exploitation, including strategies for proactive protection:

Know when to fight and when to negotiate.

Protect your IP while maintaining essential industry relationships. In short, it is not just about fighting: It is about fighting smart, knowing precisely when to defend and how to wield the law effectively.

Read the full Law360 article using the PDF above or link below.