06-reference/research

squarely common law priority vs hex tree

2026-06-20·research-brief·source: deep-research
squarelytrademarkcommon-law-priorityip-strategyhex-tree

Do RDCO's 2023 Squarely Books Create Senior Common-Law Rights That Move the IC 009/041 Priority Needle Against Hex Tree's 2025 Game?

The question

Does RDCO's first use in commerce (Squarely KDP books, 2023) predate Hex Tree's 2025 Steam game enough to give senior common-law rights that change the IC 009/041 priority-date exposure? Context: deep-research follow-up to the 2026-06-19 Squarely clearance search, which surfaced a third-party "Squarely" Steam game (Hex Tree Games, released Nov 21 2025) competing in the exact digital-puzzle category RDCO plans to file in at iOS launch.

What we already know (from the vault)

What the web says

Convergences and contradictions

Synthesis for RDCO

This is informational decision-support, NOT legal advice. A USPTO-registered trademark attorney must run a live clearance search and confirm any priority position before RDCO relies on it or files.

Bottom line: the 2023 books plausibly create senior common-law rights in printed books (IC 016) — but they do NOT cleanly create senior rights in downloadable games / online play (IC 009/041), which is precisely the class where Hex Tree's 2025 game lives. The instinct "we used Squarely first, in 2023, so we outrank a 2025 game" is half-right and dangerous if over-relied on. Priority in US trademark law is goods-specific and use-driven: RDCO's 2023 use is for puzzle books (printed matter), and that use is senior only for the goods it actually covers and goods genuinely related to them. A downloadable video game is a different good in a different channel (Steam vs Amazon KDP). The bridge that could carry RDCO's book priority into the games space is the zone-of-natural-expansion doctrine — and the Federal Circuit has squarely held that doctrine is a shield, not a sword. RDCO could potentially use it defensively (e.g., to resist a Hex Tree opposition, or to defend its own related-goods use), but it cannot use it offensively to register SQUARELY in IC 009/041 over Hex Tree's existing game use if that would cause confusion. So the 2023 date helps RDCO hold ground in/near books; it is not a trump card that clears the games classes.

There is a second hard limit specific to books as the priority source: book-title trademark rights are inherently thin. A single title generally is not protectable; a series title (RDCO has 3 volumes, which clears the 2+ bar) can be — but courts and the USPTO treat moving from a book series into software/games as brand extension/licensing, not an automatic carry-over of rights. That further weakens any argument that 2023 book sales auto-confer games-class seniority. RDCO's real common-law footprint in IC 009/041 today is essentially zero (the iOS app is pre-launch per [[strategy]]), so in the games class Hex Tree is currently the senior common-law user, having actually shipped a Squarely game in Nov 2025.

What this means for priority-date exposure and strategy: (1) IC 016 first remains correct and is now more clearly the right move — it is the class where RDCO's 2023 use is genuinely senior and where no collision surfaced. File it. (2) For IC 009/041, the 2023 books do NOT meaningfully reduce the Hex Tree exposure. The decisive variable is timing of federal filings, not the book first-use date: if Hex Tree has filed (or files an ITU) for the games classes before RDCO does, their filing date likely outranks RDCO's later games-class use. (3) The fastest defensive lever RDCO actually controls is to file an intent-to-use (ITU) application in IC 009/041 now, ahead of iOS launch, to plant a constructive-use priority date that beats anyone who starts using after the filing — rather than waiting for launch and relying on a books-to-games expansion theory that is defensive-only. (4) None of this changes the standing recommendation: the IC 009/041 classes need a real, attorney-run live clearance specifically against Hex Tree (TSDR / tmsearch.uspto.gov) before filing, including a direct check of whether Hex Tree has a live or pending Squarely application. The descriptiveness (2(e)(1)) risk from [[2026-06-13-squarely-uspto-trademark-filing-strategy]] also still applies and can compound a crowded-field weakness given the many "Square*" puzzle games.

Open follow-ups

Related

Sources