This article is written by Vansh Bajaj, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Recently, the whole universe was bombarded; not with bombs and guns, but with something that proved to be much more dangerous. Yes, you guessed correctly; I am talking about the virus that is unseen yet breathtaking, the one and only “Coronavirus” aka COVID-19. The outrage of this deadly virus left cities worldwide in awe. Earlier, there were no medicines or vaccines available to counter this lethal virus. Consequently, people lost their lives due to the virus. If somehow, they were able to resist death, they were left with permanent illnesses that affect vital parts of the body. In short, this life-threatening virus has devastated the house of many. However, we all have heard an idiom that says “there is something good in everything bad”. On the positive side of this outbreak, families that haven’t sat together for a long time are now spending all these days of lockdown together and enjoying these moments. From eating breakfast together to having dinner with each other, from watching movies to playing interesting board games.
Wait, t did we just say “the interesting board games”? If you look at certain stats “since the government allowed the sale of non-essential items in some markets after the unfortunate outbreak, big stores like Big Bazaar, Snapdeal and Paytm Mall have recorded their highest-ever sales of board games. “20,000 units of ludo and another 3,000 units of carrom boards have been sold” claims Big Bazar.
As the heading “intellectual property rights: the protective shield for the board games” explains, this article is all about the relation between board games and the laws of intellectual property rights. Before we start talking about these games, why don’t we play a quick game where I will throw some riddles at you and by cracking those riddles you have to guess the name of the game. Here are the following riddles.
- “More than my name, the words “check and mate” earned me fame”.
- “By rolling the two dice on a game board, you can buy the houses and the hotels whichever you can afford”.
- “The number of players required to play me is minimum two and maximum four, whosoever pots the pink token gets the maximal score”.
Chess, monopoly and carrom board! If these are your answers then award yourself with a sweet. But what if I say that someone has invented a new board game that can be played with 4 tokens and dice and named it “carrom board” in which you have to hit any of the black, white and pink tokens with a striker to win the game of chess! Sounds ridiculous? Yes, it does. However, this can become a reality if there are no intellectual property rights available. For most of us, these are just games with a certain set of rules but under the surface it is different. . Like music and video, these board games require the protection of copyright law. For these board games, trademark law is as important as it is for brand names and logos. Moreover, it may sound weird but patent law also works as a shield for these board games. Let’s sink deeper into this.
Impact of intellectual property rights in the world of board games
In recent times, India has become pre-eminent in the field of intellectual property. If we thoroughly understand the meaning of intellectual property, it signifies creations of the mind, such as inventions, literary and artistic works, designs, and symbols, names and images used in commerce. These intellectual rights are safeguarded by certain laws including but not restricted to copyright, trademark and patent law. The main rationale behind these intellectual property rights laws is to protect the interest of the intellectual property owner in society.
For intellectual property owners, these intellectual property rights are as important as water in the context of survival. Every right holds a large amount of significance in itself. We are all quite familiar with the relationship between a music composer with the copyright law or a relationship between a famous brand logo owner with the trademark law and obviously with the love affair between a scientist and the patent law. It is quite evident that a music composer would seek a shed of copyright law to protect his musical composition while a famous brand owner would take the shelter under the umbrella of trademark law to protect his brand name and logos from the rays of infringement. However, not-so-popularly discussed, these intellectual property right laws are as vital for the owner of board games as they are for any other intellectual property owner. Yes, you heard it right. We always hear that making good music requires a lot of hard work whereas a painter gives his everything while painting a craft. However, what we have never heard about is the level of dedication and hard work required to make a board game. For us, it is just a piece of entertainment but if you ask the maker of the game you will get to know the story of struggle, dedication and hard work behind making a piece of entertainment board. To give justice to the struggle, dedication and hard work of the maker, it is significant to protect their work from any other person and make sure that only the maker shall earn every bit of profit arising from the sale of the board game in the market. Here, the importance of intellectual property rights laws becomes crucial. Now, the question arises whether the board games would come under the scope of copyright law or under the ambit of trademark law or by any means, shall they be a subject for the patent law. Let’s move step by step.
Copyright and board games
Copyright law acts as a messiah for the writer of literary works such as novels, poems, plays, reference works, newspaper articles. Furthermore, it protects the film of the filmmaker from becoming a victim of infringement including but not restricted to piracy. Musical composers and choreographers are also shielded under copyright law and most importantly, the copyright law gives the privilege to every artist to safeguard artistic works such as paintings, drawings, photographs, and sculptures from any kind of infringement. Now, the question raised above is whether the copyright law is useful for the owner of board games or not? The answer is a big “Yes!” Copyright law is a very useful tool considering that board games consist of a lot of other tools other than the board itself such as rule book, tokens, cards and dice etc. and all these are tools that could become the main victims of infringement. So, under the ambit of the copyright law, the following aspects will be safeguarded:
- Text of the Rules of the game and any other manuals: Being a piece of original written work, the Text of the Rules of the game and the manuals will fall under the literary work and can be protected under copyright law. However, the idea or mechanics for the board game aren’t protected by copyright law. For instance, you can not restrict anyone from using the concept of rolling a dice and moving a token along a track.
- Story of the game: Sometimes you may see a game that is purely based on a story. Being a lover of plot-based board games, I can name many but for the sake of example let us consider a game like Sherlock Holmes: Consulting Detective, a game relying entirely upon a storyline. Here, the maker of this game could seek copyright over the story of the game(subject to a condition that such story shall not be used earlier by any other person) to assure that no other game in the market shall have the same storyline. The story, being a written work of the maker, will fall under the literary work aspect of copyright law.
- Board layout and Box design: Another liberty that the copyright offers to the owner of the board game is to protect the board layout. For example, the chessboard boxes pattern or the artistic work included in creating a property square on the monopoly board. Moreover, sometimes more than the concept of the board game, what is more, tremendous is the outer box design of the game. You won’t believe it, but such a design requires more hard work and is more stressful to make than the board games. So, to make sure that such board designs shall also be protected, they are also safeguarded under copyright law. However, a special provision under Section 15 of the Copyright Act, 1957 is available to elaborate the concept of design under copyright law.
- The traits of the characters in the game: Many role-playing games are prevailing in the market; that is, they are fictional characters and all such fictional characters are equipped with a unique name, appearances or attributes. Interestingly, the copyright law offers shelter to the traits of these fictional characters i.e., if the owner of a particular game obtains copyright over a particular character, such copyright will prohibit any other game owner from using any other character of the same attributes in his game. This displays how vast the arc of copyright law is.
- Derivative work: A derivative work is an expressive work that includes the principal copyrightable elements of the original. Copyright law grants a luxury to the owner of the game to hold all exclusive rights to all derivatives of the original concepts, such as electronic versions of the game or alternative formulas.
Trademark and board games
It is a genuine fact that something unique yet simple has more probability to stick in your mind as compared to something complex. Now, how would you feel if I say that this mere genuine fact is the key to the success of many entrepreneurs? Yes, it is correct.
McDonald’s, a rich brand, has left a great impression on the minds of people through a simple slogan that says “I’m lovin’ it”. Whereas what strikes you, If I say “__ gives you wings”, the answer is obviously only Red Bull. What about this one in our native language? “____ doodh pita hai India ”, the answer is yet again obvious Amul. How do we remember this? It is because of their uniqueness and their association with the same brand for a long time.
Let us consider this line- “their association with the same brand for a long”. What if the next morning you wake up and hear an advertisement saying “mother dairy doodh pita hai India ”. Is it possible? Could it happen in real life? No, it is not possible and it is unlikely that it would happen in real life, all thanks to the trademark law that protects this slogan or taglines from being infringed and allows the brand owner to sleep peacefully. However, not only are these slogans guarded by the trademark, they are just mentioned for the sake of example. The actual range of the trademark law is expansive. Let us discover it.
As said, the ambit of the trademark is so vast, it renders protection to the names of the company or the name of any product along with domain names if they label a product or service. Furthermore, it shelters symbols, logos, slogans or phrases, colours and product design or product packaging (known as “trade dress”).
From the owner of the Ferrari to the owner of the TVS, from the owner of the Apple to the owner of Micromax, the trademark is equally significant as it protects their brand name or logo or slogan from any kind of infringement. However, in recent times, not only these famous car brands or mobile phone manufacturers are taking shelter under trademark law but the proprietor of the Board Games has also recognized the value of the trademark law. If we talk about the ambit of the trademark law concerning the board game, it is huge. The owner of the board game may utilize the trademark law for protecting the following aspects.
- The name of the game: the famous example of a game’s name being trademarked is none other than MONOPOLY, a registered trademark from Hasbro. The trademark law equips the owner with the luxury to shield his game’s name. By earning the trademark on the name of the game, the owner makes sure that no other competitor can manufacture the game with a similar name as the owner. However, remember that trademark does not prevent another company from producing a similar game.
- Protecting the logo and the slogan of the game: Similar to any other brand owner, the owner of the board games also gets the privilege to protect their logos and the slogans used in their game from any kind of unfortunate infringement.
- The company’s name: Sometimes, merely protecting the name of the game is not sufficient as the name of the company manufacturing the game can lead to various complications. Therefore, to prevent such complications, the trademark law, along with the game’s name, safeguards the name of the company manufacturing the game. For instance, a company named “yES” is manufacturing a board game named “NO” and has earned a ton of customers. Suddenly another company comes into the market named “yESS” and starts producing a similar board game with a different name and eventually affects the sale of the company “yES”. In such a scenario, the earlier company having a trademark over the name “yES” can sue the new company for trademark infringement and can guard their profits. Furthermore, the law also protects the logos and the slogans affiliated with the company’s name.
Patent and the board games
Now is the time to approach the most important of all questions we mentioned earlier. The question that sometimes confuses experts of intellectual property. “Whether a board game can be patented or not?. Being an IPR enthusiast, I have researched a lot to provide the best possible answer to this question, however, in the end, I can only say the question and the answer are AS-IS i.e., confusing. Yes, you read it right. Nevertheless, we have to answer the question and we will answer it and will try to keep it as simple as we can.
Before answering the question, it is, firstly, important to be fully aware of “What, exactly, is a patent?”
A patent is a privilege provided especially to the inventor(s) i.e., a patent, for a limited period, granting an exclusive right to the inventor to exploit his invention economically. Without the prior permission of the patent holder, his invention can’t be used, distributed, imported or sold by any other person.
Coming back to our question, the game mechanics is the aspect of the board game that is made under the ambit of the patent law. Game mechanics, in layman terms, means a specific element of gameplay, for instance, some of the games include an element of auction or bidding, whereas some include the feature of a chit pull system. So, all these elements are termed, game mechanics. Now, these game mechanics can be safeguarded by patent law. However, that’s not the end of the answer. Merely having a game with certain mechanics does not qualify that game for patent protection. There are some compliances that the owner of the board game shall have to fulfil in order for him to be called the patent holder. What are these compliances? They are as follows:
- The nature of the game must be “novel”: As we say in general “nakal ke liye bhi akal chahiye hoti ha”. It means “you shall apply your mind even if you are copying someone else’s work”. The same applies here, merely copying someone else’s work and making a few changes to it won’t make the game eligible for patent protection, the game shall be novel.
- Non-obviousness of the game: The next compliance is the “non-obviousness”. It is somehow similar to the first compliance, however, what this compliance asks for is that the invented game shall not be obvious or is derived from something that is already prevailing in the market.
- Usefulness: This is something ridiculous but being compliant, the owner has to comply with it. This says the game invented shall be for use i.e., it shall be used by the general public not just invented for mere invention. This is the easiest compliance to comply with as it is obvious that the inventor has invented the game to sell it.
To conclude this article, I just utter these few words. Irrespective of how much we curse the laws of our country they are the 4th essential requirement after what we say “roti” “kapda” and “Makan”.
Commenting on laws regarding intellectual property in our country, it is likely to say that they, in a true sense, are acting as a protective shield for all the owners of the intellectual property. The topic we just discussed i.e IPR vis-à-vis the board games is a topic that won’t attract the limelight quite often, however, IPR is as relevant in the field of board games as it is anywhere else. Be its copyright, trademark or patent, each one carries its unique power to guard the board games against becoming a subject of infringement. It is pretty much recommenced to the owner of the board games to earn the badge of the “intellectual property rights owner”. It might cost them a few pennies to earn the protection but it will protect them from the ton of expenditure they might have to spend to beat the monster named “infringement”. Furthermore, knowing the profit earned via the sale of the game is their sole property, they can have a peaceful sleep. So, I would never mind spending a few pennies for the sake of peaceful sleep.
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