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Can we use Itch reference in our game without any copyright issue?

A topic by Power Games created Jan 01, 2021 Views: 966 Replies: 17
Viewing posts 1 to 4
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Hi, 

I want to make a game about game development. In that I want to allow player to upload their game in itch (just in game not real). So I wanna ask that can I use your real name 'itch.io' to let player can upload games in game.

More Clarification:-

this is a new game I am creating for a game jam (based on jam theme). So in this game You will have your own game development company. As you know every game developer uploads his game in a platform. Just like that I want to give a option for the player to upload games in a website which name will be the real name of "itch.io". So if I use "itch.io" name in my game. Have you any problem? or any copyright issue?

cause I can't find the copyright page of itch. Please answer me

(1 edit) (+1)

I don't work for Itch and I don't represent Itch, however:

What most people do is change the name a little bit to avoid any problems that could happen. So instead of Itch, you could call it R̸̡̙͚͚̻̮̳͈̝̙̳̼̖͒̋̈́̐̋́́͛̑̂̆͜͜͠E̴̹̜̥͎̅̀́̉͊̊̎̈́̈́͆̋̕͠Ḑ̴͖̘̭͍͇̳͉̗̼̘̂̂̚ͅA̶̢̧̡̡̡͔͓̼̟̘̮͈̬̅C̴͚͛̀̋̎́̐̍̇͑̚͝͝T̸͈̣̝͗͐̓̇̊̑Ȩ̸͕̯̺̝̮͉̠̔̈́́͝Ḓ̵̢͚̦̝͍̻͖̪̳̥̬̠̮̀́̓͛͋͆̃̂̏̎͋̿̌̕. This would bypass the legal problems, but it would still be clear what you're referencing.

EDIT: Some people have expressed concern that Scratch, an online web game & movie development community vaguely similar to Newgrounds, may complain if you use the word "Scratch" as a stand-in for Itch. Fine, whatever. Call it Ootch then, if anybody's taken that in a vaguely video game-related context I'll eat an airplane.

I know it. But I want to use real name

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Don't forget there's already a game-oriented programming language called Scratch.

And what's the relevance of that? It's not like anybody's going to confuse them.

Please note that Scratch already is an existing name for an on-line code-less game programming language. So I wouldn't use that.

Also note that there was in the Netherlands once a kind of weblog (before blogging really became a thing) about NetSchaap. This led to being sued by AOL the owners of the back then popular web browser Netscape. Yeah, I know it's absolutely crazy, but it really happened. The blog NetSchaap (literally "Net Sheep") was about the adventures of a virtual sheep, to make the case even more silly. 

I am from the netherlands. Lol. Just had to say that.

Bedankt voor de informatie. Goed te weten dat ik hier nog landgenoten heb ;)

Please english, I have to translate your sentence idk which language it is

It's Dutch, since I replied to somebody from the Netherlands that was only obvious.
Translated to English it means: "Thanks for the information. Good to know I got some countrymen here"

I translated using google translate. Anyway thanks for your posts

Netscape was called Netschaap and/or Natschaap in Dutch "chat language". AOL attempted to seize the Netschaap.nl domain name by claiming it was a trademark infringement.

AOL lost the case.

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Not a single soul in my neighborhood (all Netscape users back in the day, at least those who actually had internet back then) would use the word "Netschaap" to refer to Netscape. Now I do like only 20 km away from the (Belgian) border, but that's still Netherlands (and on the Belgian side of the border they still speak Dutch, at least when you pass it near my hometown). 


When it comes to trademark names things are always a bit complicated, especially when the trademark or brand name is used for different purposes. The name "Sierra" is the name of a car model by Ford, but it was also the name of a game development company. 


Indeed AOL lost the case, however that was a close call as they initially won the case, however when Moerstaal, owner of the Netschaap domain went to a higher judge the earlier verdict was overruled, making that AOL ultimately lost the case. Now I must say even when it was a parody cases like these are not easily won. I do remember that when the band Aqua had a hit song with "Barbie girl" that Mattel, the owner of the Barbie doll brand on which the song was clearly based, tried to sue Aqua for that, however the judge deemed the case so silly they didn't even wanna look at it making Mattel lose the case before the trial even had begun (especially since the judge wanted Mattel to explain why the sales on Barbie dolls broke all sales records when that song was a hit if the song was so bad to Mattel's image). YMCA by the Village People was almost sued by YMCA but the case was withdrawn when YMCA had far more reservations than before that song came. 


Even though cases like these are not easily successful, it can still save a lot of stress, and dealing with lawyers and such (the Netscape case did cost Moerstaal a lot of money for getting a layer and such in order. Since I had a subdomain hosted by Moerstaal myself I received a pretty detailed latter about the case). Moerstaal was big enough to get some people to help getting that all done. As a lonely indie developer you have not, and that's why I personally recommend to avoid brand names, trademarks and so on...

(1 edit)

Dutch news articles from 2001 do use "Netschaap" to refer to Netscape and directly state that this was commonplace in the contemporary Internet. This is why AOL sued in the first place; they were intending to use Netschaap as the Dutch name for Netscape and wanted to seize the Netschaap.nl domain name for that purpose. This was a plausible grounds to sue upon, even if they ultimately lost the case.

Scratch would have absolutely no grounds on which to sue someone for using the word "Scratch" in a random video game as a stand-in for Itch, as this does not in any way impede them the way that taking a restricted domain name does, nor would any reasonable person mistake the two.

Quite frankly, I find it much more likely that the player would never have heard of the wouldbe-suitor Scratch to begin with.

The comparing looks like it makes sense, but reality thought me it doesn't. First of all what AOL planned doesn't matter for the law. Moerstaal was first, and that is what counts.

--> Dutch news articles from 2001 do use "Netschaap" to refer to Netscape and directly state that this was commonplace in the contemporary Internet.
Which news channels. Not the ones I followed back then. All news channels I followed used "Netschaap" to refer to "Netschaap" and not to Netscape. Since nearly everybody in the Netherlands speaks English fluently English names haven't been translated for years, except in products that are aimed for children, which is for a web browser not the case.

So if that was AOL's intension their intensions were given the fact the name was already taken no longer legal. Also cases in which amateur productions were removed to the use. There are by the way more cases in which lawsuits over a name led to misery. I just recommend against using the name "Scratch", as all I showed is the top of the iceberg of the long list of many cases.  Also I would never link "scratch" to "itch" so this leading to Scratch to think it refers to them is not so odd, and then it comes down to what judges believe. More risky than you think.

And when it comes to amateur productions being hunted down due to references (and then I do not mean only "fangames" that are actual remakes, but mere references), the number of cases is beyond counting. Especially Nintendo and Wizards of the Coast are rather infamous for that.  I do not know about Scratch on this point, but as policies change... Personally I could use the name for anything as long as it's not gaming related.

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When it comes to the usage of existing names in your product I always advice caution. When it comes to linking a game to a site the notice is all fine and even necessary, like an on-line trophy system, which itch.io does not have, but a similar game site does. Then noting the name of the site is just vital.

When it comes to your game containing a name, like in this case itch.io, I would actually advise against it. First of all the copyright issues are likely what is not in the way. The way I estimate the admins now they may not even mind. But what if itch.io would ever get sold? The current staff members are only human after all and won't level forever and you never know the stance of future owners.  And this also brings you to another position. What if itch.io would ever break your trust. Seems silly to say here on the itch.io forums, but I do speak out of experience that websites may sometimes take a very very nasty turn you can never agree with. Many companies in general I used to speak highly of are now on my personal blacklist. If that would ever happen in the future the name is already in your game, and it can be one hell of a job to remove it all. That alone is reason enough to avoid it.

Of course, it is always your choice, and regardless if the itch.io staff allows it or not, I personally recommend against it.

Thanks for detailed info

Use of company names is more a trademark issue than a copyright issue

https://www.uspto.gov/trademarks/basics/trademark-patent-or-copyright

Aside from that, I agree with Jeroen's advice.

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