Protecting your back catalogue


With the first commercial arcade video game being released over 50 years ago, the ageing games industry is sitting on a potential wealth of dormant intellectual property (IP) waiting to be revitalised for new and nostalgic audiences. So, what rights may still exist in older games, and how can their owners prevent others from exploiting their IP without permission?


T


Daniel Goodall, associate and intellectual property specialist at law firm, Shakespeare Martineau


he industry appears to be riding on a wave of remakes, remasters and sequels of old classics, with Diablo 2’s resurrection and the remasters of


Zelda: Link’s Awakening and Final Fantasy VII as just a few successful examples. With many games remaining only in players’ memories, their successful revitalisation requires an understanding of the IP attached to them. Relying on IP in the video games sector can be


controversial though. There’s a difficult balance between using it to genuinely protect creations and using it to stifle the market. However, when used appropriately, IP is a vital business asset enabling developers and publishers to prevent competitors from taking advantage of a game’s reputation and popularity.


HOW MIGHT CLASSIC GAMES STILL BE PROTECTED? Registered trade marks are a valuable right to hold in the gaming industry. As long as they are renewed and


60 | MCV/DEVELOP February 2022


used, they survive indefinitely, protecting anything from titles, names and music, to sounds, images and colours. By registering for specific goods and services, companies can also protect their mark for alternative income streams, including merchandise. However, if the mark is unused for a period of five


years, it becomes susceptible to being revoked from the register. Even if the mark remains on the register after this time, it will likely be challenged should the owner come to enforce it. If a game is shelved, it is possible that registered marks have been allowed to expire, ending protection. That said,


if a trade mark has expired, there may still be unregistered rights in the


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