I am hap­py be­cause late­ly we’ve been hav­ing quite a few con­sul­ta­tions from clients in the gam­ing in­dus­try. Some of the games are soft­ware based, in­ge­nious labyrinths of on­line screens. Oth­ers rise from the In­ter­net of Things, com­bin­ing clas­sic games with new tech­nolo­gies, in­te­grat­ing phys­i­cal pieces with soft­ware in smooth in­ter­ac­tions and cre­at­ing ex­cit­ing ex­pe­ri­ences for users.

Here are some com­mon sit­u­a­tions I’ve no­ticed in ad­vis­ing new gam­ing com­pa­nies, both in pro­tect­ing their IP and al­so in mak­ing sure they don’t in­fringe oth­ers’ IP:

(1) IP Pro­tec­tion: The client has de­vel­oped a cre­ative game and is about to launch the game. Some­times the soft­ware is al­ready built. Oth­er times the main sketch is de­fined and a kick­starter cam­paign is launched but the pro­to­types are still be­ing built. In most cas­es, in one way or an­oth­er, the idea has been re­vealed and shared with oth­ers. The client wants to know — Is there any­thing pro­tectable out there? How can we best pro­tect their cre­ations?

- Art de­sign: screens, user in­ter­faces (UIs), char­ac­ters, look & feel —> Copy­right: Copy­right is the cheap­est way to ob­tain some pro­tec­tion over the game. The artis­tic fea­tures of the game (it’s sto­ry­line, its char­ac­ters, its art de­sign, im­ages and screens) and the soft­ware code can all be pro­tect­ed with sim­ple copy­right reg­is­tra­tions that are ob­tained quick­ly and in­ex­pen­sive­ly.

The plus: a sin­gle copy­right reg­is­tra­tion gives in­ter­na­tion­al pro­tec­tion in most coun­tries of the world, so it is es­pe­cial­ly use­ful for games with in­ter­na­tion­al pro­jec­tion. The mi­nus: tech­ni­cal fea­tures may not be pro­tect­ed by copy­right — one may need to com­ple­ment with de­sign or patent rights.

- Tech­ni­cal as­pects –> Patents: Not every­thing is patentable in the gam­ing world. As a mat­ter of fact: most things are not patentable in the gam­ing world. The trick is to find the ways in which the game not just pro­vides “more fun” or “bet­ter fun”, but the way in which its im­prove­ments could en­joyed by what I call a most “bor­ing per­son”. With this “bor­ing per­son” test, I in­vite clients to think about it in a way in which the game would be used by some­one who does not en­gage in play­ing the game. If they sim­ply use the game with­out play­ing — could they still get some tech­no­log­i­cal ben­e­fit from the game? Does the game im­prove the state of the art in any area of tech­nol­o­gy? Is there any po­ten­tial to use the tech­nol­o­gy be­yond this spe­cif­ic game?

This will help de­ter­mine if there is some­thing patentable (im­prov­ing the state of the art) and if that some­thing if worth patent­ing (if it will ever have eco­nom­ic val­ue for po­ten­tial li­censees, com­peti­tors, or fu­ture pur­chasers of the com­pa­ny). Patents are ex­pen­sive and time-con­sum­ing, and thus patent­ing should be a well-thought de­ci­sion.

unnamed (3)(2) IP Cleare­ance: This is cru­cial for gam­ing com­pa­nies, how­ev­er, it can be hard and ex­pen­sive to do be­cause there are many fronts to con­sid­er.

- Copy­right: This is gen­er­al­ly the most ob­vi­ous need for clear­ance no­ticed by game mak­ers. If the game us­es the char­ac­ters or the sto­ry­line from a movie or a book, one must en­sure that the rights are cleared. Ob­tain­ing per­mis­sion not as hard as it seems: if the game is of good qual­i­ty, the own­ers of the orig­i­nal IP are usu­al­ly hap­py to li­cense its use for games on rea­son­able con­di­tions.

- Trade­marks: When choos­ing a name, make sure it has not been pre­vi­ous­ly reg­is­tered or used by an­oth­er com­pa­ny. Un­for­tu­nate­ly, it’s not enough to check just if the do­main is avail­able — the best way to find out is though search­ing the na­tion­al trade­mark of­fice + al­so googling for lo­cal us­es. Choos­ing the right fresh name from the start helps avoid­ing a lot of headaches lat­er.

- Patents and de­signs: This can get trick­i­er be­cause a good search is best done with the help of an IP agent, and its fre­quent­ly too bur­den­some to per­form up­front. If the game was in­spired by oth­er com­pa­nies’ software/hardware, then it does make a lot of sense to see what is pro­tect­ed in the area. Many times one on­ly learns about patent rights from the rights hold­er (or a troll) once the game is de­vel­oped and a cease and de­sist let­ter is on the ta­ble. To mit­i­gate this, keep in mind that patent clear­ance goes hand in hand with a com­pa­ny’s own patent­ing strat­e­gy: pro­tect on your end to have patents to cross-li­cense or ne­go­ti­ate on.

Gam­ing com­pa­nies and users are ear­ly adopters of new tech­nolo­gies, and the fun part as coun­sel is work­ing with the le­gal chal­lenges of fu­ture gad­gets. IP can give strong le­gal build­ing blocks to new amus­ing ex­pe­ri­ences.