Video games are able to be protected by a range of intellectual property (IP) rights, including copyright for game software, script music and artwork, and trade mark protection for game branding and characters. Apart from games themselves, game consoles, controllers and other game peripherals also represent valuable IP protection opportunities.
Gaming hardware also ably demonstrates the many layers of IP protection that may be available in relation to a single device, as the various IP rights focus on different subject matter and have different qualifying criteria. Traders offering goods such as gaming hardware that incorporate a number of different elements such as software, innovative technology, industrial design and distinctive branding may therefore have a number of available IP protection options to consider.
Say fictional gaming hardware company XYZ Gaming creates a new controller:
There are several key areas of IP protection that apply to video game hardware. XYZ Gaming may pursue multiple layers of protection options to deter competitors from adopting a similar aesthetic, maintain a competitive edge and protect their investment in product development. Examples of available IP protection options for XYZ’s controller include:
- Patents – The functional aspects of XYZ Gaming’s controller may be protected through the patent system if they are new and inventive, providing the patentee with the exclusive right to exploit the claimed invention. Patent protection typically provides a maximum 20 year term with annuity fees payable.
- Registered designs/design patents – The overall aesthetic appearance (shape, pattern, design or ornamentation) of XYZ Gaming’s controller may be protected through registered design rights if it is new and distinctive, which can be leveraged to prevent competitors from embodying similar designs in their own products. Importantly, design protection does not protect any functionality of the product. Design registrations provide for a maximum 10 year term in Australia, with renewal fees payable after 5 years.
- Copyright – copyright protects video games themselves. Additionally, XYZ Gaming’s controller may include embedded software, including the operating system, drivers, and any pre-installed games or apps. This software may also be protected by copyright law, which prevents unauthorised reproduction.
- Trade mark registration – Game hardware is typically offered under distinctive branding. These include not only conventional brands and logos, but also distinctive shapes. Trade mark registration provides the trade mark owner with the exclusive right to use the registered mark. Trade mark registrations can be powerful protection tools as they are indefinitely renewable. However, registrations for shapes that are functional or decorative (like XYZ Gaming’s controller) may be difficult to protect and enforce.
Because IP rights can be cumulative, multiple IP rights can subsist in the same product. XYZ Gaming could elect to pursue any or all the above forms of IP protection at once.
What protection options are best?
Each different category of IP rights differs in terms of subject matter, qualifying criteria, registration costs, time to secure rights, protection terms, scope of rights and enforcement requirements. Whether for video game hardware or other goods, the benefits of multi-layered IP protection strategies include:
- Taking advantage of different protection terms and registration costs/timeframes. For example, seeking design registration for design features (which is often swift and low cost to obtain but has a relatively short protection timeframe), as well as longer-term protection options such as patent registration, may help secure protection for some aspects of the hardware swiftly while maintaining longer-term protection for other aspects of the hardware.
- Attaining a broad scope of rights, which may be beneficial not only for enforcement but potentially future commercialisation.
- Obtaining access to different rights enforcement mechanisms. For example, some online enforcement / takedown options may be easier to utilise in relation to contravention of registered IP rights over copyright and unregistered trade marks, and some Courts may provide streamlined enforcement options for some categories of IP infringement.
- Securing fallback positions in the event any rights are invalidated.
- Deterring counterfeits through creating a thicket of rights that may prove difficult for other traders to work around. For example, if the external design of a controller is protected by a design registration and the internal functionality via a patent registration, any reproduction is more likely to infringe at least one of these rights.
It is important to obtain specialised IP advice on which protection options and strategies may best secure your commercial objectives.
If you would like to know more, please contact Stuart Green (sgreen@dcc.com), Lauren Eade (leade@dcc.com) or your regular DCC contact.
Image created with the assistance of DALL·E 2.
This article forms part of DCC’s Gaming & IP initiative