UK that can be enforced under the common law of ‘passing off ’. Passing off protects a business’ goodwill from damage by third parties seeking to benefit themselves commercially, for example through a similar name or packaging design. Protection can extend to names and logos (brands) as well as aspects of a game such as its look and feel or ‘get-up’. In some circumstances, goodwill can survive longer
than an unused trade mark. Unless the owner has deliberately abandoned its goodwill, if consumers still recognise certain elements of a game, then residual goodwill may still exist even if a trade mark has expired or is susceptible to challenge. For historically popular games, such as Metroid, this would be easier to establish than for a more obscure title with a niche fanbase. There is also an abundance of copyright within
video games, protecting not only the software itself, but other aspects including graphics, sounds and character designs. Usually in the UK, the employer owns the copyright, but where works are commissioned, as is common in the gaming industry, the first owner is the commissioned party. As a result, it’s essential to take assignments from suppliers, whether they be artists, composers, animators or programmers. If a company is relying on a licence, the terms may
not extend to the use of the copyrighted work in reissues, remakes or sequels. Should certain aspects be unusable because of this, it means rights have to be reacquired or risk taking away the nostalgia of a game. For example, imagine a new Sonic the Hedgehog game without the iconic ‘ding’ sound when he collects a ring.
as a weapon, or being perceived to be doing so, can also be reputationally damaging. In one case, a retrogaming entrepreneur who had purchased the rights to the classic ‘Horace’ game, shut down a super-fan of the largely forgotten title on YouTube, which went down poorly with fans and the media. While trade marks and copyright are the main forms of
IP protection seen in the video game industry, registered designs and patents are also relevant. Registered designs are often used for protecting video game hardware, but can also protect the look of a game, such as its gaming user interfaces and heads up displays. Registrations last for 25 years, if they are renewed every five years, and are simple and cheap to obtain. Proving particularly popular with mobile app developers and publishers, it’s possible that registered designs will be used more commonly to protect vintage games in the future. In the UK, patents for computer programs are
specifically excluded from protection, making them difficult to obtain for video games. However, this is not the case in all territories, such as the United States, where software patents are prevalent. Examples include the ‘ping’ system in Apex Legends, and the split-screen dual reality mode in The Medium. Providing 20 years of protection, they are a powerful IP right to hold, so are worth considering early on in development, despite them being less common within the UK gaming industry.
BEST IP PRACTICE For companies that own a back catalogue of games, it
isn’t too late to consider registering new trade marks. It’s also important to secure trade mark protection for all relevant goods and services, such as clothing and merchandise, to provide better protection for these alternative income streams. For existing trade marks, diversifying the way in
which they are used reduces the risk of losing them. For example, Nintendo offers back catalogue NES, SNES, and N64 games via Switch Online. By using the marks, the company is not only reducing the risk of a challenge, but also keeping their goodwill alive. Registered designs can be useful for
It’s important that companies remember this when
buying a business for its back catalogue. By carrying out a full IP due diligence check beforehand, purchasers can ensure they are buying all the rights they need to do what they plan to with the title. For those selling their back catalogue, failing to have IP assignment records could affect the value of the business or even prevent a sale, so it’s vital to document IP ownership. Copyright is therefore a key tool for companies
wishing to protect their historic games. However, using it
filling gaps left by other IP rights. Although unfortunately not an option for protecting old games whose designs have been public for a long time, they are an ideal way to protect aspects of new games long into the future. Cult games now will one day be vintage, so
considering IP protection from the outset is essential. Most importantly, healthy IP rights help to ensure other companies don’t swoop in and take advantage of nostalgic audiences.
February 2022 MCV/DEVELOP | 61
Sony recently renewed it’s Psygnosis
trademark. Now you know why.
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72
