Survey reveals few indie game developers seek trademark protection; law firms urged to show door is open 06 Apr 17

A poll conducted by World Trademark Review at gaming conference EGX Rezzed last week suggests only a small percentage of independent video game developers consider registered trademark protection during the process of releasing a game. While various reasons were stated, one repeatedly brought up was the daunting prospect of approaching a law firm, with a more bespoke approach suggested in a bid to benefit both communities.

Hosted annually, EGX Rezzed is a video games conference with a focus on independent gaming (ie, titles not developed by major studios). The 2017 event was held in London and had a dedicated exhibition hall featuring over 100 games, many of which were still in development. As this was an opportunity to get a better understanding on how indie game developers think about brand protection, World Trademark Review went along and conducted an informal survey amongst developers and other industry figures.

Overall, awareness of the need to file for a trademark at some point was high, but nearly all of the developers we spoke with said they had not yet taken any formal steps to obtain registered trademark protection. “If I become a new Angry Birds then maybe I’ll need one, but right now I wouldn’t mind if someone else used my game’s name to sell clothing or other products – I’d see it as free advertising,” said one, who preferred to remain anonymous. Others saw trademarks as important for only established franchises. “This is not a game like Call Of Duty, so I don’t think anyone will steal the name,” stated one developer, who demonstrated knowledge of non-registered rights by adding, “but if anyone does steal it, I can prove I was working on the game before they were”.

Many indie games are created by just one or two people, often on a shoestring budget (for example, Microsoft-owned global gaming franchise Minecraft began life as a one-person project conceived by Swedish game designer Markus ‘Notch’ Persson). Therefore, unsurprisingly, lack of finances was the main reason many developers gave for not considering registered trademark protection. “It’s too expensive,” said a representative of indie game BrawlOut, with another developer claiming that any expensive legal issues could be dealt with at a later date: “I figure if I become successful, I’ll have money and can pay someone to sort out any IP issues.”

There were exceptions. Representatives for Polish development studio Ovid Works were well aware of trademark law and are working with a local firm to obtain protection for their games Interkosmos and Metamorphosis. “In terms of trademark infringement, it's not something we are necessarily concerned about,” explained PR and marketing manager Yashar Dehaghani. “Interkosmos [also the name of a Soviet space program] has existed for a while, so there's already tons of merchandise related to it. So we're not really stressed about that. But we also know getting trademark protection in the video game space is worthwhile. So our plan is to register the game name in the US, because it's our largest market and because we know that will give us some claim in other jurisdictions. But for us, that's the extent we are willing to go – it's expensive, and as an indie developer, we have to try and find the right balance.”

Ovid Works CEO Jacek Dębowski added that concern over expense is something that law firms should be prepared to address. “When you start a game, you often don't have the funding to consider this stuff,” he explains. “It can often be three guys scrambling for the money to buy food, so the last thing they think of is hiring a lawyer. Therefore, it would be useful if law firms offered some kind of early support; maybe wherein fees could be reimbursed later on, or there be an arrangement of exclusivity (so if they support us at an early stage, we agree to work with them for at least two or three years when or if a game is successful) or there could also be a sponsorship arrangement (such as a law firm's logo appearing in the credits or when a game first loads up). If not, effective legal representation for brand protection may not be a viable option for most indie developers. They may decide to wait until they have success before hiring a lawyer – but by then, it may be too late.”

Beyond expense, independent developers often cited the “scary” prospect of approaching a law firm. Dehaghani mentioned that there are some individual lawyers helping to improve legal education in the indie development community (and name-checked Morrison Lee attorney Ryan Morrison’s regular ‘Ask Me Anything’ on Reddit’s indie developer subreddit). But there is an opportunity for more law firms to offer their expertise, he added, as long as they become more visible and approachable to indie developers.

“A lot of small game developers may have IP-related questions, but they are often intimidated of going to a lawyer,” Dehaghani says. “So maybe the legal community can do something to show that their door is open – a dedicated web page with commonly asked questions relevant to indie developers would be helpful. I also think law firms would do well to attend gaming conventions more often, by hosting panels on common IP issues and the risks and opportunities involved. Alternatively, they could host a booth, although it shouldn't be a full-on ‘corporate law firm' stand, as that could be daunting to approach. It has to be welcoming, because some of these developers are young and they might be unsure of all of these IP issues. So if there was a booth that had lawyers offering to answer their questions in a comfortable, open way – an informal consultation, of sorts – then this would help individual developers and, in turn, would help drive the entire indie game industry forward."

There are significant issues that independent studios could face when they release a game to market. There are numerous examples of developers that have had to change the name of their game after receiving cease-and-desist letters for unintentional trademark infringement. In-game use of marks can also be an issue – recently IVSoftware, developer of Prison Architect, was informed by the Red Cross that their use of the cross on in-game ambulances violated the Geneva Convention. We have also reported on numerous cases of casino companies demanding payment from small video game companies for alleged trademark infringement. On the flipside, though, there are examples of indie game developers misusing perceived trademark rights (such as when developer STICLI Games recently sent critic Jim Sterling a trademark takedown request in what appeared to be an attempt to stifle criticism), which demonstrates the ethical and PR considerations developers must be mindful of when defending their own IP rights.

But, of course, for every Stardew Valley, Undertale or Minecraft, there are hundreds of indie games that don’t find mainstream (or financial) success. So for developers, it’s about finding the right balance – being aware of IP issues and having adequate protection without breaking the bank. As one representative from a major technology company told us at the event, the independent gaming industry “is still maturing and best practices are still being formed”. For law firms, opening their door to this fast-expanding industry could be an opportunity worth exploring.