As far as I understand I can trademark any name for a game if it is not registered already, even if it was already used by somebody in released projects, right?
What about dead trademarks? Can I register the same name without any problem, if it is already “dead” (for over five years)?
Oh… the owner of the dead trademark is a book publishing company that is still in business, and the name was of one of their published books.
Trade marks typically have to be in active use to remain protected.
Laws differ between jurisdictions. Always consult a lawyer. A half hour discussion with a lawyer now is much cheaper then defending a lawsuit later.
Edit: Using an old trademark to convince customers you are associated with a particular brand or product will probably be illegal regardless of the time lapse. Trade mark law is mostly about consumer and brand protection. Deliberate attempts to deceive customers will be frowned upon.
Thank you. Yeah, I’ve read a bit about Zombie Trademarks… This all seems pretty tricky with no guarantee that I won’t be sued for using the trademark even if my producd is distinctly different. I indeed would need to consult with a lawyer if I won’t come up with a better name for a game.
And I doubt that they would just let me use their trademark, even though it is not used anymore for over five years, and it is not recognizable by general public.
They’re not zombie trademarks because you don’t know what they are being used for. I’d be surprised if you got away with using the filed away trademark of a once well-known former business or brand - even unused trademarks are put away in a portfolio because of their value.
or maybe that’s lack of value:
Why give yourself a headache? It’s essentially free for a law firm already doing such would for existing businesses to monitor and scoop up such ‘property’ as soon as it becomes available. Why it doesn’t even cost as much as registering domain names and we know how out of hand name sitting has been there.
Also there are some grey areas regarding common word right? Scrolls should be one of them. 
On a somewhat related note I heard on the radio the song and tune Happy Birthday has recently been released into the public sector. No more infringement lawsuits when you want to use Happy Birthday in anything you create.
Scrolls should be fine to use. Eldar should be fine to use. Use both together and you might get into trouble.
Crash course does a good treatment on trade marks.
Doesn’t mean they won’t try and give you grief though.
http://www.gamasutra.com/view/news/165441/Bethesda_Mojang_settle_Scrolls_trademark_lawsuit.php
Yeah Ryiah got it. 
Thats what I was referring to.
From what I understood, the issue wasn’t the name Scrolls, but rather Mojang tried to trademark the name. Bethesda has “Elder Scrolls” trademarked, and they felt that they needed to prevent Mojang from trade marking “Scrolls” to show that they were defending their trademark.
Yeah, but note it never went to court. Holding a trade mark on such a generic term as ‘scrolls’ would be virtually impossible. Most likely the out of court settlement just involved their lawyers talking too each other and determining the other companies intentions. Bethesda probably agreed not to take it to court, Mojang agreed not to try claim against ‘Elder Scrolls’ infringing on ‘Scrolls’. The media then blew up the story to sell advertising space next to blogs.
Again, trademarks are all about consumer protection. The entire point of the law is for consumers to be confident that the product they are buying is from the source they expect.
If your branding is designed to confuse users into thinking you are someone else, expect to be struck down. If your branding might be considered to similar to someone else, then prepare to be struck down.
But if there is no chance of consumer confusion you don’t have a case.
As always it’s complex and you should see a lawyer. You should also simply avoid names that might be covered under an existing trade mark. Trying to ride off another games popularity by making consumers think your game is related is trade mark infringement.
Name it Scruples & Scrolls. Or The Elder Books. Or a lot of good and valid titles. You’re trying to convey what your game is, not mislead the buying public. Right?