Protection Racket

Trademark the name of my game

A trademark for my game 'Farm Ranger' protects the name in its function to indicate the origin of goods as produced by me. It can exist to stop anyone else calling a game 'Farm Ranger' or anything similar enough to cause confusion to try and ride on the coattails of my games popularity. The requirements for trademark registrations are that they cannot be descriptive, must be capable of distinguishing goods and services of one business from those of another and needs to be registered against the class of goods for which the trademark is used.

There are 45 classes in which a trademark can be registered so it is important to ensure you get the right classes relevant to your product as it will only be protected from infringement in these classes and whether it is descriptive will depend on what classes it is registered in. By way of example, I couldn't for instance trade mark the name 'Soap' for a Soap (class 3) as its descriptive. I could however, trademark a computer game called 'Soap' (class 9) assuming no-one else had done it first, which would prevent others from calling a game 'Soap' or something confusingly similar, 'Soapie' for instance. On the face of it this is great and if Farm Ranger is registered I can stop others using the name.

The problem would then be if another company enters the virtual farm genre but doesn't call it anything similar enough to Farm Ranger, which would infringe my trademark - a game entitled 'World of Farms', for instance. The answer would depend on how closely this new game copies Farm Ranger and whether it copies it closely enough to infringe my copyright.

Copyright

Copyright is an automatic right that attaches to various types of original creative works. There are a number of categories of protected works but for simplicity I am going to work through this example using the two main and established rights used for computer games. These are the copyright in literary works as computer source code and the protection of the images generated by the game as artistic works (the same right that also protects paintings and photographs). Continuing with the example of the supposed rival and upstart World of Farms, assuming the developer and publisher haven't seen and copied my source code (which is unlikely), whether an infringement exists will depend upon the similarity of individual artistic works (which may be screenshots or single graphics) between the two games. In order to demonstrate copyright infringements I need to demonstrate World of Farms has copied the whole or a substantial part of the artistic work. In other words it will need to show in that there are still frames in World of Farms which copy a substantial part of still frames in Farm Ranger or other graphical components. It is worth noting that the protected elements are not what could be expected, such as the functionality of the command structures (which are not protected) but the still screens as viewed as if they were pictures in a separate right.

Next Steps

If I can demonstrate World of Farms have copied screen stills, I can consider putting them on notice of the infringement and take steps to protect my idea. If they are not infringing I'm left with what could be an incredibly similar game to my own but with no legal remedy.

This might not be too surprising a conclusion given the huge amount of similar games available. Some may consider this inadequate especially with the constant interactions of games, which mean that games can skirt the lines of what is copying knowing that should they get too close they can always pull back. Others may consider this a current reworking of the idea that all art is imitation and that imitating and drawing on other games is acceptable and usual. This is certainly true to the extent that reworking ideas or drawing on pre-existing ideas is a fundamental part of artistic expression but it is the crossing over from inspiration to outright copying that is the concern and which is rightfully protected. Where there is copying the remedies and even the threats of remedies are incredibly powerful and useful. Apple for instance will remove potentially infringing content pending resolution of the issue. Where the game is distributed via either digital download, via Facebook or streamed, or by boxed product the distributors can be informed they are distributing infringing material and asked to stop distributing or risk of being deemed liable themselves. This effectively puts pressure on the infringing game publisher and developer as it affects their revenue stream. Such actions can result in the game being removed or even the payment of a licence fee to use the infringing content by the infringing developer.

Conclusion

While the above demonstrates that there are legal remedies that are potentially useful to the protection of games it is also clear that in some cases these protections may not be adequate. While the quote attributed to Mark Pincus is illuminating it does not address the issue that while simply copying a successful game may be easier than creating a successful game yourself, it is often the originators of an oft copied idea that enjoy the greatest success, and so arguably without some innovative difference the copying product will not achieve the same success as the original.