Even if the developer has become defunct since releasing their games, future developers may find themselves having to rename their products. Trademark rights are based on being the only one using the word, phrase, or symbol to identify the source of the goods or services, so if two companies with identical goods (video games) release a game with the same name, consumers may be confused as to which game was released by which source.
Titles of movies and books, however, are given a bit more lee-way, because the Copyright Act focuses on the creativity of the author, rather than the popularity of the title. So having two movies, both called “9″ and released in the same year, is perfectly acceptable, as both titles are creatively related to the underlying film content.
With video games, however, as with other types of software, the legal industry is less convinced that there is artistic content, and more inclined to treat the name as a purely commercial endeavor. Which means that prior games may prevent new games from using the exact same cool name that would make total sense in relation to the creative world and gameplay.
However, the standard for whether a trademark is registrable with the US Patent and Trademark Office is whether such registration would create a likelihood of consumer confusion. Each Circuit has a set of factors which, when weighed together, determine whether such confusion is likely. Many of the tests are similar, and tend to look at things like how much money was spent advertising each product, for how long each product has been on the market, and whether there was actual confusion (people calling the wrong company to ask about the products).
If the old game had a small release, was not aggressively marketed, and the new name wasn’t adopted with the intent to fool the public into thinking the two games are connected, then adopting the title for the new game is probably okay. The more generic the title, the less chance the senior owner will be able to prevent others from using similar titles, and if the game is an intentional parody or homage to the older game, then having a similar title would probably be allowed in the US. Other jurisdictions, including Japan, do not have a parody defense for trademark infringement, so releasing a parody abroad is necessarily fraught with more difficulty than in the States.
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