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Brand protection issues of independent video games

For years, video game development has been one of the fastest-growing sectors of the entertainment industry, with more and more unique ideas brought forward by the efforts of a few individuals. The global number of gamers also continues to grow and is expected to exceed 3 billion by 2023, according to Newzoo’s Global Games Market Report for 2020. As this promising sector continues to prosper, starting game developers ready to enter the market should pay close attention to their intellectual property rights if they wish to avoid bigger legal troubles down the road.

By

Igor Demcak

What are indie games?

Indie games are video games typically created by individuals or smaller development teams without a large game publisher's financial and technical support. The term “indie” is just a shortened version of “independent” and indicates that the developers not only created the game but also took care of the marketing and everything else that was required to successfully launch their game. A single person or a small team of 2 to 10 people can build such games from scratch. Sometimes indie games are referred to as “free” because game resources are either created by the developers themselves or taken from free sources.

Similarly, as is the case for other artistic creations, the core of indie video games has always been their intellectual property (IP). Compared to traditional copyright-protected works, video games are generally much more complex. They are a conglomerate of many different elements, such as computer programs, audiovisual content, pictures, designs, literary works, voiceovers, music, artistic performances, trademarks and many others. Managing the specifics of video games presents a real challenge when it comes to IP protection. Protection of intellectual property rights (IPRs) in this growing global industry includes:

  • Copyright protection of aspects of computer games, including software/coding, artwork/images, music/sounds, films, text, and gameplay.

  • Trademark protection of characters and designs, among others.

  • Enforcement strategy for businesses and bringing actions against infringements.

Indie games and related trademark protection issues

Becoming a victim of trademark infringement 

Trademark infringement is the unauthorised use of a registered trademark by any third party on any goods or services identical to the goods or services specified on the register. According to general trademark laws, a registered trademark is infringed when the infringer, without obtaining consent from the registered trademark holder, uses an identical logo or a name for its goods or services despite the possibility of confusion by the average consumer. Gaming and software, in general, are highly-competitive industries. Once you have your game or product out there, there is not much preventing a competitor from blatantly copying your design and profiting off your hard work. In the wrong hands, your brand can suffer irreparable damage and dilution of your business reputation. 

Infringement of other brands

When somebody is using your game assets without permission is a significant enough issue for the brand. However, the brand is expected to face even more substantial troubles from a legal perspective if they are themselves infringing on somebody’s intellectual property. If the trademark owner is able to prove infringement, the company accused of trademark infringement is likely to receive any of the following:

  • a court order to stop using the accused trademark;

  • an order requiring the destruction or confiscation of products including the accused trademark;

  • an order for monetary relief, including defendant's profits, any damages sustained by the trademark owner, and the costs of the action; 

  • an order that the defendant, in certain cases, pay the plaintiffs' attorneys' fees.

All of these trademark lawsuit consequences can ultimately be detrimental to the game brand, as they will always go along with the loss of positive brand reputation, lost sales, and rebranding costs. That’s why it’s extremely important for brands to take appropriate preventative measures to ensure they won’t have to deal with infringement going further with their business.

Example cases

Activision vs Warzone.com

Warzone.com LLC is the owner of a popular strategy online game called “Warzone”. In 2017, Warzone.com filed a trademark application to the United States Patent and Trademark Office (USPTO), in order to protect the game title. The trademark has since been registered. About a year ago, Activision Publishing, the creator of the well-known video game “Call of Duty”, filed 2 trademark applications, in order to register their latest version “Call of Duty: Warzone”. Warzone.com opposed Activision’s trademark applications, claiming the marks applied for are confusingly similar to trademarks that are already registered under the category of video games. Activision, in its turn, argued that there is alack of similarity between the trademarks, as Warzone.com’s games are only featured online, while “Call of Duty” is mainly made for gaming consoles (Playstation, Xbox, etc.).

IKEA vs ZiggyStudio

Swedish furniture giant IKEA sent a cease and desist letter to a solo indie developer studio Ziggy, demanding he makes changes to his unreleased survival horror game set in an Ikea-like furniture store. "The Store is Closed" is a coop survival game developed by Jacob Shaw, where the player is stuck in an infinite furniture store and must survive against its mutant staff. The Kickstarter campaign for "The Store is Closed" launched in September and quickly passed its initial goal, reaching $94,791 with 2,086 backers supporting the project. Some of the main issues at the heart of the conflict are the "blue and yellow colour combination" of clothes worn by characters in the game, which look almost identical to those worn by IKEA personnel, as well as some of the design elements of the furniture store.

Takeaway

To find out more about the benefits of trademark protection for indie game developers, read about 12 good reasons for creators of PC games to register a trademark. Read our Brand protection advice for the gaming industry to build an ultimate brand protection strategy through trademark registration of unique game assets.

Team Trama is here to support you along the way. Endorsed by 3,500+ brands across the world, trademark one-stop-shop Trama offers an elegant solution to protect the heart & soul of your business! Simply start with our free lawyer’s check which allows us to better understand the specific needs of your business and provide tailored recommendations. Need more clarification before you are ready to proceed? No problem at all! Please schedule a free consultation with us and our representative will gladly walk you through the process, addressing any concerns you might have!

Igor Demcak
Igor Demcak
Trademark Attorney

Founder & CEO of Trama

7 year experience in IP protection

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