Games Law Update: April 2012

Hi everyone – here’s your dollop of games law news over the last month, curated by yours truly…


The ESRB mobile app rating system: is it missing some teeth?

The first move towards pan-mobile industry age ratings began last week – but I’m not sure it got off to a roaring start.

The move was made by two US bodies: the Entertainment Software Ratings Board (ESRB – the body responsible for the self-regulatory model of games age ratings in the USA) and CTIA (“The Wireless Association”). In a nutshell, they have introduced a mechanism by which developers can fill out a questionnaire and then get their app rated on all participating appstores.

Continue reading The ESRB mobile app rating system: is it missing some teeth?

5 legal tips for mobile, tablet and handheld games

I spoke at a TIGA conference on mobile, tablet and handheld games hosted at the offices of my employer, Osborne Clarke in London last week.  I gave a talk called “5 legal tips for success in mobile, tablet and handheld games”, which I thought you might like to read.  Here are the slides:

Continue reading 5 legal tips for mobile, tablet and handheld games

Apple v Amazon over the ‘App Store’

Last week news broke that Apple is taking legal action against Amazon over the latter’s forthcoming opening of its “Appstore for Android“.  Apple argued it constituted trade mark infringement of its well known iOS “App Store“.

I spoke with about what all this means – here’s the article reproduced below:

“Apple’s move to block Amazon’s use of the ‘Appstore’ name on the day before it launched was an aggressive move, even in the context of the ongoing battle between Apple and Microsoft over the App Store moniker.

On a legal basis, however, Apple isn’t looking for a quick win over its newfound rival.  The attempt to protect the ‘App Store’ name is the kind of tussle that has the potential to roll on for some time to come.
That’s the view of Olswang LLP lawyer Jas Purewal who told he thinks the case could become a complex legal battle.

Take the stand

“This lawsuit is really about the application of trade mark law to the fast changing world of mobile purchases,” Purewall, who is also the writer behind games law blog Gamer/Law, says.

“Briefly, a trade mark is a sign – like a logo or brand name – which a business uses so that its customers can recognise its goods and services and distinguish them from the goods and services of a competitor.

“Trademarks can generate significant brand value and, therefore, protecting them is important. In this case, Apple is suing Amazon on the basis that Amazon’s Appstore will ‘confuse and mislead customers’ – for example, that customers may buy an app from the Amazon App Store thinking that it is in fact created, sponsored or approved by Apple.

“In effect, Apple wants to stop Amazon from benefiting from the value which Apple says it has built up in that phrase via its iOS App Store.”
Problem precedent

Apple’s case against Amazon, however, is complicated by its ongoing efforts to register its App Store trademark with the USPTO.

“There are potential difficulties for Apple in pursuing this case,” explains Purewal.

“Firstly, Apple does not itself yet have a fully registered trade mark over ‘App Store’ – in fact, Apple’s trade mark application is reportedly being contested by Microsoft on the basis that it is too generic to be protectable – which has the potential to turn this into a three-way battle between Microsoft, Apple and Amazon.

“This is by no means fatal to Apple’s case against Amazon, but it may complicate it. Secondly, Amazon will no doubt argue that there is no likelihood of confusion between the Amazon Appstore and the Apple App Store because they will presumably run on completely different devices.

“Further details of the lawsuit are not clear at the moment, but it is possible that Apple may seek a temporary ban on Amazon rolling out its Appstore until a full trial of the lawsuit – though Amazon would no doubt contest this.

“If the case does reach trial in due course, the court will then need to decide upon the relative merits of Apple’s and Amazon’s cases and rule whether or not Amazon may proceed with its Appstore plans.”

You can read more about trade marks and games here: demystifying trademarks and games.

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Analysis: are age ratings coming to social and mobile games?

Are we seeing the start of a trend towards governments extending their games classification rules to mobile and social games?  If so, this is going to cause some serious friction with the games industry.

Examples: in August, the Australian Labour Party promised (if re-elected – which now looks highly likely) to apply its notoriously restrictive games classification laws to mobile games, which reportedly could cost between Aus $470 (£273) and Aus $2040 (£1187) per game – ouch.  The Government is said to be “examining the issues“.

Next, reports that Korean authorities are now blocking an increasing number of freemium games for failure to seek age ratings.  Clearly, freemium these days is one of the main ways in which indie/social/mobile games are distributed and seeking an age rating for them would be a time and money cost to the developer.  Apparently this may also cause problems for Valve’s Steam (and presumably other digital distribution platforms too) which do not pay for age ratings at the moment.

In the UK, games classification is governed by the Video Recordings Act 1984 (as refreshed by the Digital Economy Act 2010), which is currently administered by the BBFC but due to change to the Video Standards Council next year (which will then apply PEGI classification rules – somehow).  In principle, mobile and social games are “video works” under that Act just like more traditional forms of games – and therefore there is a good argument in law that they must be given an age rating before they can be sold to the public.

I think we are going to see more of these announcements in the short/medium term.  But, even if we don’t, what these examples show is that there is an issue here:

  1. Governments want to make sure that all games comply with their games classification laws in order to ensure that childen are protected.  In fairness, there may well be some social/mobile games which are inappropriate for children, which would need to be classified if they were ‘traditional’ games and therefore need to be controlled.
  2. BUT, complying with games classification regimes costs the developer/publisher time and money.   It is one thing to demand this of larger games titles which are better resourced, but arguably it is another thing entirely to demand it of indie/social/mobile games which might be released on a shoestring budget and depend on a long tail to be profitable.  Or, look at it this way: would Doodle Jump or Angry Birds have been released if Lima Sky or Rovio respectively had to seek prior games classification in every target market?

How could this play out in the long term?

  1. Games classification authorities insist that games are classified.  This will have a negative effect on some developers and might even persuade some not to release games in difficult countries.
  2. Games classification authorities are persuaded to use a ‘light touch’ model for smaller value games.
  3. Some form of industry self-regulation.  At the minimum, devs may realise that they don’t have a completely free artistic hand when it comes to making the next generation of social and mobile games.

Of course the problem is that there is absolutely no joined-up thinking when it comes to games classification world-wide.  You have ESRB self-regulation in the US and then you have PEGI-based classification in most of Europe (including the UK shortly).  Then you have a multiplicity of different games classification authorities in other countries, which can take very different decisions to each other (more on that here and here).

So, in the short term, games companies are going to have to continue to deal with a regulatory maze when it comes to games classification, which the authorities won’t assist if they continue to push for regulation of absolutely all forms of games. 

In the meantime, a few practical points:

  • Work out your projected target markets (say where you expect to sell 10% or more of your products)
  • Make sure you have worked out the games classification position in those markets and whether the associated time/money cost in complying with their classificaiton rules justifies the release there (if need be, have a word with a friendly lawyer)
  • Contact your publisher (whether a traditional games pub or perhaps Apple etc) and see if they can assist

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