IP Information & News

The COVID gaming boom — why and how to protect your IP

Nicole Cordy

By Nicole Cordy

Patent Attorney

While the gaming industry hasn’t been completely immune to the global impact of COVID-19, it has fared far better than many other sectors. Since the introduction of social distancing restrictions, we’re spending more time than ever playing games and watching our favourite streamers — so much so that Electronic Arts’ net income doubled in the first quarter of 2020, with player numbers soaring in popular franchises FIFA and Call of Duty.

In eSports, although many events have been cancelled during the pandemic or forced to continue without a live audience, many broadcasters including the BBC have turned to eSports to fill the gap left by the suspension of most traditional sports, helping to bring eSports to a wider audience.

In this booming industry, protecting your assets is key. One of the most important and valuable assets of a gaming company is intellectual property (IP). While the traditional giants of the industry are usually familiar with IP, for many smaller teams and indie developers, gaining some knowledge is important to make sure that your brand and creative endeavour is protected.

If you’re developing a game or starting an eSports team, here’s a crash course in IP to help get you up-to-speed.

Why protect IP?

1. Safeguard your brand

A significant amount of effort, time and money is invested to develop a game — and the title, characters and any other distinctive or memorable elements all contribute to the overall ‘brand’. These elements should be protected to enable you to stop other people from causing confusion or trading off your good reputation by releasing games using the same or confusingly similar branding.


2. Add value to your company

If you want to sell your game or your company to one of the industry giants, or secure funding, registered IP rights add value to your company and make it a more attractive prospect for potential investors. The same is true for an esports team hoping to attract sponsors.

3. Generate additional revenue

You can license the right to use your registered IP rights to open-up new revenue streams. This might take the form of character merchandising, where you can license the right to use your trade mark to a third-party toy manufacturer. Without a patent, design or trade mark registration, licensing options aren’t as straightforward — for example, your exclusive rights can be questioned and royalty rates are likely to be lower.

How to protect IP

There are four main types of IP rights — patents, designs, trade marks and copyright. Here, we’ll focus on trade marks, copyright and designs, which are the most common IP rights in gaming.

Registered trade marks

A trade mark registration is a powerful monopoly right, giving the owner the ability to stop others from using the same or a confusingly similar brand for the same or similar goods or services. If you build a reputation in the brand, then the rights you can use to keep others away can be broader still.

Trade marks can be used to protect different elements of your brand including names, character appearances, movements and sounds. Trade mark registrations can be renewed indefinitely — there is no limit on the amount of time the owner can be granted the monopoly.

Copyright

Copyright is an automatic right that can apply to original written and artistic works, which can include computer code, graphics and soundtracks.

Copyright gives the owner the right to stop others from copying their work, distributing copies of it, renting or lending copies of it, performing, showing or playing it in public, making an adaptation of it or putting it on the internet without their permission (note that there are some exceptions to this).

The basic idea and mechanics of the game aren’t protected by copyright. For example, if you developed a skydiving simulator game, you wouldn’t be able to rely on copyright protection to stop a third party from developing its own skydiving simulator game, unless they copied your coding, graphics or another original element.

There isn’t a system of copyright registration in the UK, so it’s vital to keep records relating to the creation of works including graphics and written literature, in case you need to try and enforce copyright against an infringing third party in future.

Designs

Although some design rights arise automatically in the UK and EU (unregistered design rights), we recommend applying to register your design, as this makes it easier to enforce. Registered designs protect the appearance of a product, including shape, colour or 2D decoration.

Registered designs are often overlooked in the gaming industry, but they can be a useful asset. They can be used to protect GUIs, characters and other visual aspects of a game. The scope of protection is defined by the drawings filed, so it’s important to get these right.

IP in contracts

If you’re considering outsourcing any work to contractors, or entering into agreements of any form with third parties (such as distribution agreements), it’s crucial to have an agreement signed, in writing, before any work is started. This should state that any and all created IP belongs to you or your company.

This should also be the case with your employment contracts, which should contain IP clauses. Without such formal agreements, you risk getting engaged in highly expensive and difficult legal disputes in future. Copyright is particularly tricky, since it’s usually owned by the creator, and even if a contractor is following your brief and getting paid by you, they will be the copyright owner unless an agreement exists in writing that says otherwise. Such agreements are standard practice in the industry.

Find out more

For more information, see our dedicated pages for games and app developers. We also have a detailed report on IP across the creative industries available to download.

For expert, tailored advice on what IP you might have and how to protect it, get in touch with me at njc@udl.co.uk.

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