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„Board games may be easily copied.” – remarked a gamer acquaintance of mine when we were having a conversation about how it is possible that there are so many similar board games on the market. Even though intellectual property law provides extensive protection, there remains space for similar products. I would like to outline the situation through some interesting cases (without claim to completeness).

The market of board games is expanding at a quick pace: a forecast predicts 5,81 billion-dollar growth globally for the period of 2020-2024.[1] (the Covid-19 pandemic has probably altered the expected trend). Beside the multinational companies, smaller enterprises have become able to enter the market thereby experimenting with the creation of unique and innovative games due to the crowdfunding phenomenon. In the past years, one could witness the tangible game items (such as dice, game board, cards) being converted into a digital format (e.g. smartphones). Another trend is that children are not the primary target market of board games anymore. In line with the growth of the market, the amount of legal disputes related to plagiarism may also increase.[2]

The creation of board games is a multifaceted activity, the protection of which can be ensured in many ways, but the law cannot protect each element of the games.

1. Trademark protection

Among others, the title, logo or visual design of a game may be registered as trademarks. The trademark owner has several ways to take action against articles marketed under marks similar to her registered trademark.

In 1983, the Supreme Court of the United States rejected the request for review of Parker Brothers. Through this, the Court virtually upheld the lower court decision which declared that the „Monopoly” trademark has become generic. The latter decision reasoned that the „Monopoly” mark merely describes a type of board games and, consequently, consumers cannot identify the manufacturer through the mark. The decision was partly based on a „purchaser motivation” survey according to which the majority of the respondents did not care who manufactured the game they were playing with.[3]

Following this case, however, the Congress amended the law by expressing that „the primary significance of the registered mark to the relevant public rather than purchaser motivation shall be the test for determining whether the registered mark has become the generic name of goods or services on or in connection with which it has been used”.[4]

In Hungary, Hasbro, Inc. – the legal successor of the Parker Brothers – has two registered national trademarks which consist of or include the „Monopoly” word.[5] This suggests that no one has successfully challenged so far in Hungary that “playing monopoly” is only possible with a “Monopoly” branded game. Notwithstanding this, it seems that the manufacturer has put into circulation more than 40 clones under the „Monopoly” brand name (e.g. „Monopoly Junior” aims at younger children, while “Game of Thrones”, „Real Madrid” or „FTC” editions are for seniors).[6]

2. Copyright

Copyright protection may subsist in the design of board games (e.g. illustrations, scripts on the packaging, on the game board or on the cards, unique miniatures). Similarly, the text and the illustrations included in the game rules, the original sound elements (e.g. games which have electrical components) may qualify for copyright protection. Unauthorized copying of these elements is illegal.

In the summer of 2018, „Overturn: Rising Sands” from Foxtales Studios seemed to be a promising project on the crowdfunding website, Kickstarter. The game not only reached the aimed funding objective in only two hours’ time, but also gathered further hundreds of thousands. However, the fame happened to be fleeting. It turned out that the majority of the rules were taken from another, already existing game („Massive Darkness” from CMON) – in some places whole paragraphs were identical. Kickstarter suspended the project.[7]

3. Patent protection

Pursuant to Hungarian patent law regulations, inventions on the plans, rules or processes related to games may not be patented.[8] Nevertheless, patents may theoretically be obtained for e.g. game equipment, provided that they comply with the relevant legal requirements.

In the USA, patent law differs from the European legal regime: it is deemed to be more liberal. For example, the „Monopoly” game obtained patent protection in 1935 (for the “gameboard apparatus”, the patent expired in the middle of the 20th century).[9] Similarly, Wizards of the Coast LLC’s card game, „Magic: the Gathering” was patented (for the „trading card game method of play”, the patent expired in 2014).[10] However, as obtaining a patent requires time and effort and registration, maintenance and enforcement fees are high, patenting board games may be relatively rare even in the USA.

4. If no statutory protection

Many essential elements of board games are not covered at the level of intellectual property statutes, in particular the basic idea and the mechanics of the game (gameplay). The right holders may prevent the unauthorised use of these through carefully drafted and signed contracts.

In the absence of such contracts, the right holders may try to prevent unethical conduct through publicity. For instance, in 2018 Francois Bachelart accused a publisher, Wonderdice of „stealing” his idea. He argued that Wonderdice’s game titled „Alien: USCSS Nostromo” was based on his game „Nostromo” which he had presented to the publisher a few years earlier. The French Game Designers Union (Société des Auteurs de Jeux) assured Bachelar of their support in a statement and called for community action against the plagiarism. At the same time, Wonderdice rejected the accusation by alleging that the relevant gameplays are different and that, compared to Bachelar’s „family” design, their product is more „gamer-oriented”.[11]

Dr. Krisztián Tivadar

Translation: Máté Zalán Szili

photo credit: pexels.com

 

[1]Global Board games Market 2020-2024 – https://www.researchandmarkets.com/reports/4894386/global-board-games-market-2020-2024#rela3-4603486

[2]Jonathan Bailey: The Rise of Board Game Plagiarism – https://www.plagiarismtoday.com/2018/07/24/the-rise-of-board-game-plagiarism/

[3] Pamela G. Hollie: Monopoly Loses its Trademark – 1983.02.23.; https://www.nytimes.com/1983/02/23/business/monopoly-loses-its-trademark.html

[4] Daniel J. Schaeffer: Not Playing Around: Board Games and Intellectual Property Law –  https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2014-15/march-april/not-playing-around-board-games-intellectual-property-law/;és 15 U.S.C. 1064 (Section 14 of the Lanham Act): Cancellation of registration – https://www.bitlaw.com/source/15usc/1064.html („The primary significance of the registered mark to the relevant public rather than purchaser motivation shall be the test for determining whether the registered mark has become the generic name of goods or services on or in connection with which it has been used.”)

[5] „MONOPOLY (MONOPOLIUM)” word trademark (registration No.: 137007) and „MONOPOLY” word trademark (registration No.: 132172)

[6] https://tarsasjatekrendeles.hu/MONOPOLY

[7] Luke Plunkett: Board Game Kickstarter Cancelled After Plagiarism Scandal – 2018.07.19.; https://kotaku.com/board-game-kickstarter-cancelled-after-plagiarism-scand-1827706801

[8] See Section 1 (2) c) of Act XXXIII of 1995 on the Patent Protection of Inventions.

[9] https://worldwide.espacenet.com/patent/search/family/021901719/publication/US2026082A?q=pn%3DUS2026082

[10] https://patents.google.com/patent/US5662332A/en

[11] Alien board game USCSS Nostromo accused of ‘stealing’ design – https://www.tabletopgaming.co.uk/news/alien-board-game-uscss-nostromo-accused-of-stealing-design/