A trade mark is a registered monopoly right in a mark, such as a word or logo. It is an incredibly important asset for any company or brand to own as it provides significant benefits. For example, they prevent others from using an identical or similar mark in relation to the same or similar goods and services. If you’ve watched Dragons Den, you’ll also know that entrepreneurs are frequently asked whether they have trade marks registered for their business names and logos.
In this post, we’ll consider the role trade marks have to play with games. This is a particularly important topic considering the rapid rise of video games and esports over the past few years. Furthermore, many games now crossover into other forms of media, such as film and TV.
When registered, trade marks can protect specific words, phrases and logos. This means trade mark cannot protect an entire game. However, they’re still crucial as they can help protect specific, highly important aspects of a game. Let’s have a look at a few.
Securing trade mark protection for the name of the game is very important if you want to ensure no one can use the same or a confusingly similar name. You should ensure that the name is not overtly descriptive. For example, registering ‘Law Firm Simulator’ in relation to a game that simulates a law firm is highly unlikely to be accepted on the grounds that it is too descriptive.
Where you have a distinctive icon or logo that is a key brand identifier that users recognise, separately and distinctively from the name of the game, you should also apply to register this as a trade mark.
If your game features an iconic character, you may want to apply for a trade mark to protect the name and/or the image of character. Companies may decide to do this if they are looking to manufacture merchandise relating to their game. Registering particular characters (e.g. Vault Boy from the famous Fallout series) as a trade mark would prevent others from using the same or similar character name and/or image.
In addition to your game, you should also consider applying to register your game studio name and/or logo as a trade mark, for the same reasons given above. Even slogans related to your studio may be capable of registration in some circumstances, i.e. if they are sufficiently inherently distinctive or if they have become distinctive through use over time. For example, the slogan “IT’S IN THE GAME” for EA Sports.
The benefits of a trade mark registration for a game include:
Before making any applications, you should see whether the words or logos you are trying to register are already registered by someone else. If they are, your application could be opposed. It is always advisable to seek professional assistance when carrying out clearance searches if possible and to take professional advice in relation to any potential issues with your game name.
So, if trade marks don’t protect the entire game, what else can you rely on?
There are several other intellectual property rights that you can use to protect your game:
Copyright is an unregistered right that protects artistic works such as artwork, music, literary works (including source code and text) and databases. You don’t need to do anything to have copyright protection, because it arises automatically once a piece of work is in existence. But if you commission someone else to do artistic work, coding or other creative work, it is essential to ensure that you have a contract in place with them – otherwise they may end up owning the copyright in your game instead of you!
The main downfall of copyright protection is that it doesn’t stop people creating a similar type of game, only from creating a copy (which is one reason there are lots of highly similar game types, like Overwatch and Paladins, or PUBG and Fortnite).
If you are discussing confidential aspects of your game with potential developers, funders and other collaborators, and want to protect the new, unique elements from being used by people outside of your business, you should have in place non-disclosure agreements (NDAs) that prevent them from discussing, using, or implementing your confidential game ideas outside of the terms of the agreement.
Design rights offer protection for designs, in addition to copyright, and can be registered to protect UI elements, models, renders, or particular designs that feature in the game, including 2-D and 3-D shapes.
The key thing to remember with design rights is that your designs need to be ‘new’ (i.e. not made available to the public more than 12 months before the filing date of your application to register your designs).
Whenever you work with anyone in relation to your game (in particular when you work with anyone who isn’t an employee), you should have an agreement in place with both confidentiality terms and intellectual property assignments. This ensures that if you work with any artists, designers, developers, consultants, photographers, or videographers, etc, they will not be able to take and use your confidential information. And, importantly, you will own any new IP in the work that you have commissioned them to do.
We are experts in all aspects of intellectual property law. If you need any further information or assistance with identifying or protecting the IP in your game, please contact us and we’d be happy to discuss!
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