Newly invented games are not easy to protect, primarily because the Patents Act specifically provides that games are not patentable. The only real exception to this is where a new game needs new playing equipment, which must be inventive as well as being merely new.
Many new games utilise playing pieces which, whilst new in appearance, are old in concept, such as a board, playing pieces, dice, chance cards etc. To be patentable, a new game requires more than just these.
On the other hand, most games have elements which are copyright, in particular the playing board and the rules.
Copyright is automatic and comes into being as soon as the board is drawn or the rules are written. It is a narrow right. There is no copyright in ideas. Thus, if a set of rules providing the same basic game is written in a completely different format with different words, it is more unlikely that there will be copyright infringement. Nevertheless, copyright is useful in preventing exact copying.
Accordingly, it is sensible to mark the rules, board and any other copyright game parts with the international copyright notice:-
© A B Games 20–.
The name is the name of the copyright owner; the year is the year of the game’s first publication.
Occasionally, it may be worth registering the design of distinctive parts of a game. Such registration is a formalisation of copyright and must be done before sale of the game.
The single best protection for a game, particularly once it is already established, is registration of its name as a trade mark.
The name should be chosen with care since descriptive names, surnames and geographical names are not registrable. It is therefore sensible to choose a registrable name and to search the Trade Marks Register reasonably early, in order to make sure that no-one else has the mark registered for a game.
Registration does not have to be sought immediately on invention of the game, but is prudent once serious commercialisation is in prospect.
In the absence of trade mark registration, some recourse may be had against an infringer using the same or a similar name, or indeed a game having a similar “get-up” or appearance. However, this is applicable only after a game has acquired a substantial reputation in the marketplace.
At an early stage, usually when the inventor of the game is seeking a backer, it is prudent to keep the game confidential. This should include obtaining confirmation from potential backers that they will keep the game, its name, its concept and all its details confidential.
Once this confirmation has been achieved, if the disclosee abuses the confidence, the discloser has a right to sue.
Games are, in general, not patentable, but have copyright components. Copyright is automatic, but is worth laying claim to. The game should be given a registrable trade mark. It should be kept confidential as long as possible.