beginner’s guide

A beginner’s guide to IP in games

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Hi everyone.  Earlier this week I went along to Dundee, Scotland for the Digital Spark conference and delivered a session on a beginner’s guide to IP in games.  I made a Prezi for the session and thought you might like to see it, so here it is: http://prezi.com/ynsvjg5hgpc6/a-beginners-guide-to-ip-in-games-jas-purewal-osborne-clarke/.

Please feel free to have a look over it and by all means drop me a line if you have any questions, would like to use it, think it’s good/bad/awesome/needs work etc.

Cheers,

Jas


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Patents and the mobile/games industry

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This post represents my personal views – not those of my employer.

Patents are suddenly causing problems in the mobile games industry – this is what you need to know about it.

What’s been happening: Lodsys vs the app developers

This year has seen a sudden spike in patent lawsuits/threats against businesses in the mobile sector, affecting both developers and platforms. Until very recently, patent infringement issues were confined to actions between the big beasts in the mobile world (like the ongoing battle between Samsung and Apple, for example).

However, last week patent issues suddenly became a real problem for app developers, when news broke that a US entity called Lodsys has been issuing warning letters to a number of app developers over patents which Lodsys claims it holds over in-app purchase technology. Specifically (as Wired reports):

Lodsys is accusing the developers of infringing a patent related to the usage of an “upgrade” button that customers can use to upgrade from a free version of an app to a paid version, or to make purchases from within an app.”

We don’t know how many developers Lodsys is threatening to take action against. Lodsys has confirmed however that it is “seeking 0.575% of US revenue over for the period of the notice letter to the expiration of the patent, plus applicable past usage“. Lodsys claims that its patents have already been licensed by Apple, Microsoft and Google, but that this does not protect developers who then create apps in their ecosystems.

What is a patent?

Basically, a patent is a type of intellectual property right which “protects new inventions and covers how things work, what they do, how they do it, what they are made of and how they are made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission” (says the IPO).

Patents typically protect inventions like new medicines or industrial machinery. They allow you to stop others from exploiting your invention and can themselves be sold/assigned/licensed to a third party – which makes them valuable. However, they are limited in duration – they last up to 20 years and then the invention typically enters the public domain.

The rationale behind patents is essentially that, if society grants inventors the exclusive right to exploit their invention for profit for a limited period, then inventors will be incentivised to keep inventing and society will benefit both from new inventions and from access to existing inventions which enter the public domain after their patent expires.

Patent law

Patent law is very complex and each country’s laws differ, so I’m not going to try to explain everything here – as always, if you have queries then you should seek specialist legal advice (or contact me). That said, for current purposes here’s the key points (based on UK law as a model) which you need to understand about patents:

  • To be patentable, basically an invention has to be new, has to involve an inventive step that isn’t obvious, has to be capable of being made or used and can’t fall into certain excluded categories (e.g. it can’t be a scientific/mathematical theory, or a musical work).
  • The process of obtaining patents is long and complicated and territorial: a patent only protects you in the country in which it is granted, so often you have to obtain patents in each country where you operate.
  • Broadly speaking, in some countries (above all the USA), you can obtain patents over software inventions, whereas in many other countries (especially Europe) it is possible but much harder/uncertain. Software patents are often pretty contentious in the tech industry (more on that later)
  • Once you have a patent, in principle you could sue anyone who makes a product that you consider infringes your patent, whether they knew about your patent or not.  In other words, if the other guy infringes your invention knowingly or unknowingly, you could in principle sue him – you do not generally need to prove that he knew about your prior patented invention.  The test for patent infringement focuses much more on a close analysis of the two products and an examination as to whether the allegedly infringing product does actually infringe the patent.
  • There are four main responses to a patent infringement suit:
    (1) Agree to pay a licence fee to the patent holder (this can range from a one-off fee to a profit sharing agreement) — avoids litigation but means an extra business cost
    (2) Fight the claim on the basis that your invention does not infringe the patent — leads to potentially expensive litigation
    (3) Fight the claim on the basis that the patent is invalid or expired or otherwise doesn’t bind you — leads to potentially expensive litigation
    (4) Do nothing and hope for the best — ultimately just leads to (1), (2) or (3) happening.

What can you do if you have patent infringement concerns?

There’s no wonder cure here I’m afraid, but if you’re concerned about patent infringement claims against you (or if you’re concerned that someone else is infringing your patents), then here are some tips to think about:

  • Take legal advice early – patent infringement claims are complicated and can ruin your business, so take them seriously. As I say to my clients, a little legal advice early on usually saves you a lot of time and money down the line.
  • Reach out to the patent holder. Find out what it wants, early on. And then work out what you can live with.
  • Contact business partners who could help you, or other entities which might be affected (in the present case, the app platforms and other app developers)
  • Check your insurance policy regarding its legal disputes insurance cover (it *could* help)
  • Get vocal or keep quiet. In other words, either get everyone you know on board to try to put pressure on the patent holder to drop the claim or, if that won’t work or public knowledge of the claim would hurt you, lock down. If need be, get PR advisors involved.
  • Make sure your business is a limited liability company. Actually this is really something you need to do before you face a claim, but it’s still important – a successful lawsuit against you, or a failed lawsuit by you against another guy, could bankrupt the business – which you can walk away from in the worst case scenario if the business is held in a company. You can’t walk away from being made bankrupt personally.

(Note: larger tech companies may well have other defences open to them – in particular, using their own patents portfolio to counter-sue the other guy (that’s one of the reasons that these companies acquire huge numbers of patents – as a shield to patent infringement claim from third parties).)

Lodsys, revisited: thoughts on what’s happening in the mobile world

So far, the Internets seem pretty angry about what Lodsys is doing (its blog even mentions death threats), on the basis that Lodsys is essentially claiming ownership of the patented in-app purchase functionality. I don’t have enough information or specialist patents expertise to comment in detail on the validity of Lodsys’ patents or its likelihood of ultimate success in any claims (though my friend Florian Mueller has expressed some trenchant views on this front at his Fosspatents blog).

Clearly though, this dispute could end up raising some pretty important issues the future of in-app purchase functionality in the mobile world. On that front though, a lot more still needs to happen before this really gets interesting. The app platforms need to make their position public (especially Apple, from which a number of app developer have sought assistance). The app developers and Lodsys also need to clarify their positions as against each other. And, ultimately, Lodsys will need to either put up (i.e. start legal action) or shut up.

If we see lawsuits afoot, it will get very messy, very quickly. Lodsys would need to pursue its claims against the app developers/platforms through legal avenues – potentially even trying to shut them down. As I said earlier on, the app/developers will need either to reach financial agreement with Lodsys, or fight the claim, or just try to play for time. If a big cat in the mobile world gets involved and funds a big legal fight, we could see the validity of Lodsys’ patents being challenged.

Ultimately, if Lodsys succeeds then it can in principle expect to receive substantial royalties from the licence agreements it could demand, while the app platforms may also decide/be forced to change how their technology works in order not to infringe these patents. This would cause a lot of difficulties in the mobile world – for app platforms, developers and customers. On the other hand, if Lodsys’ claims were defeated then it would send a strong message regarding the use of software patents to pursue these kinds of claims in the mobile world.

Of course, even if this claim does go away, I don’t think the idea of software patents being used in games or mobile or other parts of the modern tech industry will go away – look at Zynga’s reported patent applications regarding virtual currency, for example.

Watch this space.

Wider thoughts on Lodsys and software patents

More generally, my view is this debate is really about whether we should have software patents at all, and it just happens on this occasion to arise out of Lodsys’ software patents regarding in-app purchases in the mobile sector. As I said earlier, software patents are often very contentious. The arguments in favour of software patents are the same as arguments in favour of patents generally:

  • Patents promote development (especially the increasingly large R&D that expensive new software requires)
  • Patents mean that the public will eventually obtain public disclosure and free use of the invention (after the 20 year monopoly has finished)
  • Patents represent a great deal of hard work, which deserves protection
  • Patents are always subject to legal challenge if the patent holder has gone too far
  • Copyright doesn’t go far enough to protect inventions – patent protection is therefore needed

However, opponents of software patents have their own arguments too:

  • Software patents are a minefield in the modern software industry, where you can very easily but unknowingly infringe someone’s software patent, or at least open yourself to a speculative lawsuit. Or, to put it another way, how are you supposed to know you have infringed a software patent and what are you supposed to do if you have infringed one?
  • Software patents are useless #1: no software innovation will ever retain its value for the 20 years of a patent’s life.
  • Software patents are useless #2: a decent software developer could probably engineer a way around the patent anyway, so why bother having them?
  • Software patent protection actually stifles innovation by shutting up new inventions and preventing open and free innovation (especially in the Internet age where we are used to free/fast information exchange)
  • Permitting software patents just encourages patent trolls to take legal action against legitimate software developers for a quick return
  • Other branches of IP law, like copyright or trade mark law, already provide sufficient protection

These are the arguments which underlie the current debate as to whether Lodsys is acting properly or not in threatening patent infringement actions against developers allegedly infringing its patent in-app purchase functionality.

I’ll let you make up your own mind as to which you prefer. However, to some extent these policy arguments for and against software patents are besides the point: like it or not, in some jurisdictions it is just a fact that software patents are permitted and will generally be protected by the courts.

Demystifying copyright and games

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This post was originally published on GAMESbrief.

If you want to protect your games, you need to understand copyright law. It’s that simple. The problem is that many people get pretty hot under the collar about copyright law and think it does a lot more than it actually does. So, this post is about what copyright really is, what it does and what it doesn’t.

Before I get started though, it’s worth making a few initial points, since copyright in the games industry can be a pretty divisive subject:

  • This post is intended to summarise some key points about copyright law as it is, to help developers to understand where they stand legally. It isn’t about what the proper balance of copyright law should be between rewarding existing innovation and not discouraging new innovation.
  • This post isn’t about anti-piracy laws or UGC, though they do derive largely from copyright law. Those are posts for another day.
  • This post isn’t claiming that copyright infringement is any more or less of a risk for the games industry than it was back in the days of Pong. Personally, I think copyright infringement issues are on the rise, particularly in an era of mobile and casual games borrowing from established IP elsewhere in the industry (look at say Gameloft’s N.O.V.A. vs HALO or Desktop Dungeons vs League of Epic Heroes), but you can make your own mind up about that.

What is copyright?

Copyright law protects the rights of anyone who creates and/or owns a piece of work – such as a book, a film, a database or a computer program (I’ll call them “works”). To the right is an example of a random copyright work derived from one of my favourite games:

Copyright law is the main branch of IP law which protects creativity, as opposed to say trade mark law (more on that here), which is essentially about marketing your products, or patent law, which protects industrial innovation.

Five key points you need to know about copyright

(1) Copyright only gives you rights over the actual work you’ve created; it doesn’t give you a monopoly over the idea underlying the work.

This is critical: copyright law is meant to protect the fruit of your work, but it doesn’t stop people independently carrying out the same work and also enjoying legal protection of the fruit of that independent work. Legally, we say that copyright law protects the expression of an idea but not the idea itself.

Example: the fact that Nintendo owns copyright over the way that Mario looks and sounds does not give it a monopoly over all Italian plumber-themed games characters. If hypothetically Sega had entirely separately a similar Italian plumber for their own platformer back in the 80s, then Nintendo could not have objected to Sega using that work, or vice versa.

Therefore, it is entirely possible to have two very similar works both co-existing under copyright law, provided one has not substantially copied the other of course (more on that later).

(2) Copyright law gives you specific rights over your copyright work.

Essentially, you have the right to exploit the copyright work and stop others from exploiting/distributing it without your authorisation (the latter category starts straying into anti-piracy laws, which as I said is a post for another day).

These rights are valuable: you can buy/sell, leverage and license your or someone else’s copyrights. Licensing is key in the modern games industry: it is through licensing that a developer is able to make a game based on a copyright work owned by someone else (e.g. Bigpoint developed Battlestar Galactica Online or TT Games developed Lego Star Wars).

(3) A game will contain lots of different copyright elements at the same time.

For example, it could contain code, databases, pictures, films, sounds and written materials. Each of these elements is separately protectable by copyright law in different ways. This makes the copyright protection of games more difficult than, say, a book or a painting.

(4) Different countries have different copyright systems.

Example: in the UK copyright protection is automatic and there is no need to register the work. In the US, a work is not fully protected unless it is registered. (This might not sound that important, but in the recent past it’s caused real problems for Jagex, for example). Similarly, different countries have different defences to copyright infringement: the US has a wide ‘fair use’ defence, whereas the UK does not (not yet, anyway). Depending on the territories in which you operate, you may need to take specialist copyright advice (NB this post is based on UK law).

(5) Different copyright works last for different time periods.

When that time period expires, generally the work enters the public domain and becomes freely exploitable.

Example: copyright protection for a script lasts 70 years after the death of the author. However, for a film it is 70 years effectively after the death of the last of its creative team. Once that protection has expired, the work will in principle become freely exploitable in the public domain. (Here’s some food for thought: as a result, valuable IP will fall out of copyright protection in the first half of this century. For example, what happens when Mickey Mouse enters the public domain?)

Copyright infringement

As a broad summary:

  • If a developer takes an existing copyright work and copies “all or a substantial part” of it, and
  • That copying can be established factually,

Then that developer may in principle be liable for copyright infringement to the owner of the original copyright work.

So copyright infringement DOESN’T mean that if a developer bases a work on the same source or idea as your existing work, or even if his/her new work copies your existing work, that he/she is automatically infringing your copyright. There has to be copying of ‘all or a substantial part’ for there to be copyright infringement.

Copying of a ‘substantial part’ is a test of quality but also quantity: the developer could be liable for copyright infringement if he/she has copied very significant portions of your work or if he/she has copied one small but very significant part of that work.

BUT – there’s a catch. It has to be shown on the facts that the other guy has copied your work. This is done by a painstaking examination of the two copyright works next to each other in order to establish every similarity and dissimilarity between them. The judge will then take that analysis and decide whether he/she considers that there has been copying of “all or a substantial part” of the original work and therefore if there has been copyright infringement.

In practice, this can be a hard test to meet:

  • If the alleged infringer in fact did not even know about or see your work, then you’ll have no claim.
  • If the alleged infringer did know about your work, but you can’t prove that he/she had any access to it, then you’ll have difficult making a claim.
  • If the alleged infringer did know and have access to your work, then you may have a claim – but, as I said, you’ll need to show that there are sufficient similarities between the works for the judge to find copying of “all or a substantial part” of your work.

This is where it can get very murky indeed. I’m going to discuss the difficulties of establishing copyright infringement through two examples – one outside the games industry and one from within it.

Dan Brown, The Da Vinci Code and The Holy Blood and the Holy Grail

Back in 1982, three authors wrote a controversial book entitled The Holy Blood and the Holy Grail, the central theory of which was that Jesus married Mary Magdalene and that ‘the Holy Grail’ was both her womb and the resulting bloodline from that marriage. In 2003, Dan Brown’s best-selling The Da Vinci Code essentially turned the same theory into a novel.

Two of the authors of The Holy Blood and the Holy Grail then sued Brown and his publisher in 2006 for copyright infringement. The judge found that Brown had quite clearly recycled large parts of the “central theme” of their book when writing The Da Vinci Code. BUT the judge still ruled that there had been no copyright infringement, on the basis that there had not been copying of “all or a substantial part” of the actual contents of The Holy Blood and the Holy Grail. Any similarities, the judge found, were at so high a level that it could not be shown that sufficient copying of the actual text of The Holy Blood and the Holy Grail had occurred. Thus, Dan Brown, who quite clearly had taken his inspiration from someone else’s earlier work, was not liable for copyright infringement. (Incidentally, this case became infamous in legal circles because the judge incorporated his own code into his written judgment – seriously).

Let’s apply that in a games context. You create a game called Doom featuring innovative first person perspective action set on a future Mars against hordes of hostile aliens. A rival developer then creates a highly similar game called Gloom. Can you sue successfully for copyright infringement?

Answer: you will only succeed if you can show actual copying of the actual contents of your game – the artwork, sound, code etc. But it’s not enough for you to just argue that the other guy sat down in front of your game and thought “right, how can I make a game that looks and plays just like that?”

Let’s explore that further in the next example…

Nova Productions v Mazooma Games

Nova and Mazooma were both UK developers who created arcade machine games. Nova sued Mazooma and others, arguing that Mazooma’s games Jackpot Pool and Trick Shot infringed copyright in Nova’s game Pocket Money. All of them were pool-themed arcade machine games. BUT, Nova didn’t argue that Mazooma had actually copied Pocket Money’s underlying code. Instead, Nova argued that Mazooma had copied the user interface, or ‘look and feel’, of its game (you can see examples of the alleged similarities here). Nova also argued that Mazooma had copied key game mechanisms such as a cue aiming interface and power meter.

Nova lost the case, because it couldn’t show that there had been actual copying of its actual copyright works (e.g. the program code or its graphics) and it just wasn’t enough to show some similarities in the user interfaces of the games. (There’s more on the case here for those who are interested in the detail.)

This case shows us again that:

  • Copyright infringement depends on copying of ‘all or a substantial part’ of actual copyright works within a game – such as its code, graphics or sound;
  • You have to be able to show factual evidence of the copying; and
  • It’s not enough to point to superficial similarities or the ‘look and feel’ of the game – because that could just as easily have derived from the (unprotected) ideas which you yourself based your game on. Just because you develop a pool arcade game (or an FPS like Doom) first and then another guy makes a similar game, it doesn’t automatically entitle you to sue for copyright infringement.

It’s not all doom and gloom

A sceptic might be thinking at this point that there’s no point in having copyright protection. That’s not the case at all. Here’s some more positive points to think about:

  • Remember that copyright is a valuable asset in its own right, which can be bought/sold, licensed and leveraged. In fact, for games developers it is often their main asset.
  • Cpyright law goes hand in hand with trade mark law. You may not in some cases be able to stop a rival from poaching aspects of your game via copyright law, but you might be able to use trade mark law instead. You can read more about that here: Demystifying Trademarks and Games.
  • Dn’t take the above as the last word on copyright law and games. In fact, copyright law as it applies to games is not very well understood at the moment – would the same result in Nova v Mazooma happen if it was a popular narrative game rather than an essentially mechanical pool arcade game? There is I think scope for a more favourable interpretation of copyright law for the games industry in the future.

In the meantime, here’s some practical tips…

Top copyright tips for developers

  • Be realistic about how important copyright protection is to your business. What resources do you want to put towards it and in which territories? What can you do to read up on copyright law? (Tip: for the UK, have a look here for starters.)
  • Remember that copyright is a valuable asset in its own right, which can be bought/sold, licensed and leveraged.
  • If you have a dispute with another developer, think about what you want to achieve. Can you reach an amicable resolution with the other developer? Or are they actively trying to copy your product and take your customers such that a fight is inevitable? Can you use third parties, like Apple, to make your life easier via takedown requests? Can you enlist your player base or the games press to help? Have you had a word with a friendly games lawyer?
  • BUT, don’t just be guided by legal factors alone. Think about how much a legal fight would cost, how much time you have to devote to it, what your player base or partners would think of you. It may be that a negotiated settlement is better than an all out fight.
  • Don’t forget your safest bet is to make sure your games are better than your rivals’. Ultimately, only good products can grow your business and ensure your players stay with you rather than go to a rival.

Next month, to round off our IP fun over the last couple of months, I’ll be answering some frequently asked questions about IP law and games…

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Image credit: Valve Software

Demystifying Trade Marks and Games

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Trade marks are one of the most important ways to protect a game legally, but they are frequently misunderstood – as much through ignorance as anything else.  So, this post explains what trade marks are, what they do, when you can protect them and when you can’t.

Usual caveat applies: this post just signposts some of the key legal issues – if you actually have trade mark issues you need to talk about, let me know.

What is a trade mark?

Trade marks are signs (like logos or brand names) used so that customers can recognise your goods and services and distinguish them from the goods and services of your competitors.  Here’s an example:

 

 Trade marks are important to a business because they prevent competitors from confusing customers into thinking that they are buying products and services from a trusted, known source when in fact they’re not. In other words, they can be used to stop your rivals stealing your customers.

Example: You’re a developer and release a game called TrademarkVille, over which you register a trade mark. A rival developer then releases a very similar game called Trademark City. If customers purchase your rival’s game Trademark City because they wrongly conclude that you made it, or that it is actually your game TrademarkVille, then in principle you may have a trade mark infringement case.

Four key points you need to know about trade marks:

  • To be fully effective, they need to be registered. This is complex, so you should take legal advice to register and keep them.
  • If you operate internationally, you may need to get foreign trade mark protection too.
  • They can last indefinitely, but need to be renewed every 10 years.
  • Practically, trade marks are helpful in two situations: (1) you can sell/assign/leverage them; and (2) you can use them to stop trade mark infringement by a rival (aka ripping you off).

I’m going to explore this last point about trade mark infringement further today, because that is what often generates the most heat.

Trade mark infringement

As a broad summary:

  • If you use an identical or similar trade mark to sell identical or similar goods and services to a trade mark which has already been registered,
  • then you may be infringing that registered trade mark if your trade mark creates a likelihood of confusion on the part of the public (whether that confusion is mistaken or not).

So trade mark infringement DOESN’T just mean that if your trade mark is similar to another guy’s registered trade mark, then you are automatically infringing his trade mark (or vice versa). There would have to be that ‘likelihood of confusion’.  What happens in practice when one developer claims another has infringed his/her trade mark? To explain this, I’m going to look at two examples, with which I was personally acquainted, that generated some heat – Lima Sky and Edge Games.

Lima Sky and the ‘Doodle Jump’ trade mark

Lima Sky, developer of the hit mobile game Doodle Jump, registered a US trade mark for “Doodle Jump”. But soon after Doodle Jump became a huge hit, rival games with the word ‘Doodle’ in their title began to appear (a quick look at the iOS App Store shows such games as Doodle Hockey, D.O.O.D.L.E and – slightly worryingly – Doodle Dump, among many others). Lima Sky were not happy.

But things really exploded when (according to Igor Pusenjak, founder of Lima Sky) a rival applied for a US trade mark over the phrase ‘Doodle’. Lima Sky felt it had no choice but also to apply defensively for a trade mark over ‘Doodle’. On top of that, Lima Sky’s lawyers advised it to ask Apple to take down some of the Doodle type games on its App Store. All this caused just a bit of a ruckus (more on that later) and two of the questions levelled at Lima Sky were (i) ‘how can you claim you own the word “Doodle”’ and (ii) ‘how can you try to stop other Doodle type games?’

As to the first question, registering a trade mark doesn’t mean you own the word ‘Doodle’ or ‘Face’ or ‘Apple’ to do with as you please. It simply means that, provided you can meet the trade mark infringement test outlined above, you can use your registered trade mark to stop a rival ripping you off or even shutting you down.

As to the second question, actually I think there was some legal force in Lima Sky’s arguments:

  • The rival Doodle games were using a trade mark which is arguably ‘similar’ to Lima Sky’s (e.g. compare Doodle Hockey and Doodle Jump) for ‘similar goods and services’ (i.e. they are all casual mobile games sold on the iOS App Store).
  • There is at least some ‘likelihood of confusion on the part of the public’ because Doodle Jump is a massive hit on the App Store and customers may be fooled into thinking that a game with ‘Doodle’ in the title is either Doodle Jump itself or was at least made by Lima Sky.
  • Plus, once Lima Sky became aware of these rival Doodle games, if they didn’t try to stop them they ran the run of weakening or even losing their own trade mark.

(Obviously, that’s not to say that Lima Sky were definitely right, since trade mark cases are never this straightforward in reality.  However, in this case Lima Sky came in for a deal of criticism from the typically vocal games industry and, as a result, appear to have withdrawn at least some of their claims. Who ends up owning the ‘Doodle’ trade mark remains to be seen.

Edge Games and the ‘Edge’ trade mark

Tim Langdell probably needs no introduction to you. Over the last few years, he spent a lot of time and money attempting to shut down seemingly any and all uses of the phrase ‘Edge’ in the games industry – from the games magazine Edge to Mobigames’ game also called Edge. In 2010, Langdell sued EA over its game Mirror’s Edge. It didn’t work out well for him: he received a stinging verdict from a US court which found that, not only was there no likelihood of confusion between his Edge trade mark and EA’s, but Langdell had actively falsified the material which he used to obtain his trade mark in the first place. Cue public embarrassment and ridicule in the games industry, plus probably a hefty legal bill.

The moral of the story: just having a trade mark doesn’t mean you and you alone control anything to do with it. And if you take your claim all the way and lose, it can have serious consequences for your business. It also means it is vital to get your trade mark registered properly in the first place.

Top tips for developers

So, hopefully that has given you an idea about what trade marks are and how they work. To round this post off, here’s some top tips for developers:

  • Do your homework: when you’re designing your game, check to see if there are already released games with similar content/names/logos to your designs. You can do some of this yourself both on the Web and (in the UK) using the IPO database here, or…
  • Have a word with a friendly games lawyer: a little legal advice early on can save a lot of time and money later, especially since the process of registering and defending trade marks is complex. 
  • If you have a problem with another developer misusing your trade mark (or vice versa), you must act, but think carefully first. Is the other developer just making an innocent mistake which you can talk through with them? Or are they actively trying to copy your product and take your customers such that a fight is inevitable? Can you use third parties, like Apple, to make your life easier via takedown requests? Can you enlist your player base or the games press to help?
  • BUT, don’t just be guided by legal factors alone. Think about how much a legal fight would cost, how much time you have to devote to it, what your player base or partners would think of you. It may be a result that a negotiated settlement is better than an all out fight.
  • Don’t forget your safest bet is to make sure your games are better than your rivals’. The legal steps outlined above can be a defence to attacks against your business, but only good products can grow your business and ensure your player stay with you rather than go to a rival.

One last thing: where one game copies another, it usually raises issues of copyright as well as trade mark law. So, next month, I’ll be writing about demystifying copyright and games…

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