Youthful Exuberance (TM)

It’s been all over the news. The video game industry is having a problem with trademarks because the idea of ownership doesn’t seems to align well with the goals of creativity. This is particularly evident in the recent media coverage that started with King’s attempts to trademark Saga and Candy, and now continues with Ultimate Arcade’s claim on Flappy. There hasn’t been recent comparable coverage about disputes in similar industries – like movies and books – bickering over ownership of title words.

This discrepancy is in part because books and movies are more established industries– with expected group norms that keep most participants in line. These industries have already experienced the growing pains of a developing industry and created an implied contract of expected behaviors to which participants must adhere. For example, publishers and film companies tend to understand that your Lincoln movie will not be the only Lincoln production in a given year. Further, they tend to be more lenient with the content created to follow the industry trends. In the games industry, each new game can feel like an entirely new creation entitled to a higher degree of protection. Realizing that a broad range of games with similar titles can exist will be part of the growing process. With age comes maturity, something the games industry is still working toward.

The examination process limits trademarks in other industries. For a game company to trademark a title, all they must do is release one game (and meet the other general trademark requirements). For a movie or book to receive a trademark registration, they must create a product line or family of goods, otherwise known as a brand, in the mind of the consumer. While today no movie exists in a vacuum, and is additionally protected by common law and unfair competition standards, the rule remains that a brand is required. You can’t own “Terminator” because you made one movie with “Terminator” in the title. You have to make several movies or release some action figures before you approach the USPTO. You can, however, own “Candy Crush Saga” because you made one game called “Candy Crush Saga.”

Another problem is hubris – other industries limit their marks to actual uses. While most game registrations are in international class 28, and further specified through a written description that describes them as a video game, some applications include intended uses or potential uses. The most recent example of such an over reaching application is King’s CANDY application, which included claims for things like RAM, baby monitors, and TV shows. The US Patent and Trademark Office requires that applications be limited to actual uses, a restriction that other entertainment industries have acquiesced to due to experience.

A final problem is the difference in copyright coverage for each of these industries. Copyright protects the expression of an idea. For example, I can film a movie about murderous robots from the future, but the more my movie resembles Terminator, the more likely that I’m infringing. Similarly, I can write a book about wizardng school, but need to be careful not to make it too much like Harry Potter. In both these cases, the copyright covers the overall creation, adding a layer of protection to trademark. Copyright does not cover game mechanics (match 3, fps, walk over to pick up), control configurations (roller ball, button locations), or instructions or rules. Games are covered only if the expression of a theme is almost visually indistinguishable to the average consumer or substantial pieces of copyrightable expression are actually copied; and, as a result, game developers need to rely more heavily on other forms of protection. Since games are a different from other products the entertainment industry, they’re treated differently. They are the only entertainment media that can actively express patent, copyright, and trademark protection; so their reliance on each of these differs from other entertainment products.

The games industry is still young, and growing up can be difficult.

About Suzanne Jackiw

Suzanne Jackiw is an official contributor to Law of the Game. She’s a student at Chicago-Kent College of Law, focused on Business and Intellectual Property issues related to video game law; and, she works as a business intern with several small indie game companies and as a law clerk for The Game Attorney. She has attended many video game development conferences, including Steam Dev Days and the Game::Business::Law Summit. The opinions expressed in her columns are her own. Reach her at Suzanne[dawt]Jackiw[aat]Gmail[dawt]com.

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