Meeple Mountain – April 1, 2022

Section 2: What legal protections are practical?

Patents

While board games, as well as game boards, pieces, and some methods of play, can be patented if they meet the strict requirements listed above, it is generally impossible to attempt to obtain a patent for a table game. Currently, many games in the market are reworks or variations of gameplay mechanics of existing games, such as worker placement, area control, deck building, and more. Because of this, these types of games would likely struggle to meet the strict requirements. novelty and non-obviousness.

More relevant, however, is money. Most game developers don’t have the private financial means to pay the attorney fees and other costs associated with patent filing, which can run into the tens of thousands of dollars. These costs can be even higher when integrating patent enforcement costs. So while patents can theoretically protect certain aspects of a game, they are not financially practical for most game designers to pursue.

Copyright

A designer can, however, obtain copyright protection for several features of a game. as pictorial, graphic or sculptural works. In addition, text-heavy games such as RPGs and other word games may also be protected as literary works under the Copyright Act 1976. Depending on the context, the protection of the right copyright may be extended to fictional characters, if they have a “distinctive character”. traits and attributes” and are “sufficiently delineated to be recognizable as the same character each time it appears”.1 This mostly applies to things like mods and campaigns for tabletop RPGs.

However, what paramount understand is that the mechanics and conceptual rules of a game – the “heart” of a game, are not copyrighted. The Copyright Office’s games fact sheet states:

Copyright law does not protect the idea of ​​a game, its name or title, or the method or methods of playing it. Copyright also does not protect any ideas, systems, methods, devices, or brand elements involved in developing, marketing, or playing a game. Once a game has been released to the public, nothing in copyright law does not prevent others from developing another game based on similar principles. Copyright only protects an author’s particular way of expression in literary, artistic or musical form. 2

In theory, then, if someone reproduced the basics of a game in terms of the rules, but wrote them differently and did not copy any artwork, visuals, text, etc., it could potentially acceptable under copyright law.

Trademark

Trademark protection is perhaps the most relevant protection a designer can seek for their game. However, it does not protect the entire game. It is used to protect names, logos, slogans and other distinctive aspects of games . Examples of trademarks in games include the “tap” symbol and mana symbols in Magic: The Gathering, and the D&D dragon logo. This prevents other copycat games or designers from using your game name or other distinctive aspects of your game to trick your consumers into thinking that their product is actually your product. The trademark applies even in situations where a logo, name, etc. is “confusingly similar” to the trademarked aspects of your game.

“Trade dress”, which refers to the overall image and appearance of the game, includes its size, shape, colors, graphics and packaging, and may also be copyrightable if considered “inherently distinctive” (i.e. people immediately recognize Game X simply by looking at the packaging) or have acquired distinctiveness through secondary meaning. Some examples of inherently distinctive trade dress include the eggshell blue of Tiffany boxes, the fluted shape of a Coca-Cola bottle, and the shape of an iPhone.

Section 3: What is usually done?

For the text of the rules, maps and other components, as well as any artwork on the box, game board, map, etc., copyright protection is conferred as soon as they are corrected, therefore the registration is not strictly necessary. However, registration is relatively inexpensive ($35 in the US) and can give you the benefit of 1) presumption of copyright ownership and 2) a date of recording indicating ownership of the copyright. Even so, copyright registration for these components is rare among game designers.

Game names, logos and slogans are usually the first things to be filed. The first step before registration, however, would be to carry out a trademark search to see if there is already an existing trademark for the name/logo/slogan you are trying to protect to ensure you do not accidentally infringe the trademark. ‘another person. Additionally, if you feel that your box design, game board design, card layout, etc. are distinctive enough to warrant trade dress protection, so this is a potential avenue to explore.

A common law mark is a mark established solely by use in commerce in a specific geographic area. Although you still have common law protection for a trademark without registration, federal registration will give you the “presumption of validity”, without having to go through the process of proving that 1) You own the brand; 2) You have an established reputation with the brand; 3) your reputation has been damaged due to someone else’s use of the mark; and 4) people were tricked into thinking they were buying from you when they weren’t.

In short, if you want to err on the side of caution, opt for copyright and trademark registration.

For copyright: https://www.copyright.gov/registration/

For Trademark: https://www.uspto.gov/trademarks/basics/trademark-process

As a general rule, it is wise to have legal counsel ready when it comes to protecting your products. The purpose of this article is to provide game designers with an easy-to-understand guide to intellectual property law and to provide general legal principles to help game designers. Designers should consult an attorney on the specific issues that apply to them. For a reasonable flat fee, many attorneys can help you with “due diligence” searches for existing trademarks and/or copyrights, as well as how to register your own copyrights and trademarks. They can also review any contracts, NDAs, etc. which relates to intellectual property and commercial rights when dealing with a mainstream publisher. Additionally, an experienced attorney can help you draft a cease and desist letter if you find that someone is infringing on your intellectual property or, conversely, if someone has sent you a letter claiming you have infringed. hers. Legal posturing is often used as a scare tactic whether the alleged infringement allegation holds water or not. Either way, be prepared.

To read the first part of this blog, click here.

This article originally appeared on Meeple Mountain.


  1. DC Comics v. Towle, 802 F.3d 1012, 1019-21 (9th Cir. 2015).
  2. US Copyright Office Fact Sheet FL-108: Copyright Registration of Games (December 2011).

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