At my age, I do not consider myself as an avid gamer, although there is one mobile game that I play daily. Perhaps I am not the target market for such games but, nevertheless, am I the only one that has noticed a significant change in the way adverts are presented and incorporated into games?
Gone are the days of the irritating pop-up adverts or those tedious videos that you need to watch to gain that extra life or bonus. Ok, perhaps not gone exactly. Sadly. However, the more recent trend is to introduce adverts into the games in a far less intrusive way. I may also dare to say that this new trend is perhaps more effective due to the less innocuous placing?
In this article I identify and discuss the IP rights that should be considered both in terms of those that can and should be protected, and the potential for infringement of third party IP rights.
What is In-Game Advertising?
As the name suggests, “In-Game Advertising” is exactly that; adverts that are strategically placed within a game to promote your goods and services and, of course, to raise brand awareness. Depending upon the game chosen for the ad placement, there is also clearly the potential for your brand to reach new target markets.
Increasing brand awareness through in-game advertising
I have to admit that I like the current trend away from in-your-face pop-up ads or videos to a more subtle background image featuring the adverts. The game developers have cleverly identified areas within their games that can be utilised for advertising, and these are increasingly creative and effective, in my view. Seems like a wonderful revenue stream to me.
How the adverts are positioned often depends upon the type of game. For example, football-related games can place adverts on the boards surrounding the pitch, as is conventional at many football grounds. Racing car games can have adverts either in the form of the featured cars themselves (typically officially licensed) or advertising on the car, but also on the advertising boards strategically placed around the track; just as in real life. Also reflecting real life, simulation games can feature branded restaurants, cinemas, hotel chains and the like.
The point here is that the opportunities to increase your brand awareness to new and existing target markets are endless. There are so many games out there, each targeted at a specific demographic, and each having its own unique way of providing an advertising space that the brand owners have a wealth of choice.
Like a good trade mark, an advertisement should be memorable and of course, convey the core concept(s) of the brand. There are many ways that advertisers can create enticing ways of effectively disseminating information to customers in a bid to influence their buying decisions.
So, let’s consider the IP rights in relation to in-game adverts and how best these can be identified and protected.
Which IP rights should you protect?
Like any other IP right, an effective advertisement is highly likely to be imitated or copied by others. That said, adverts can contain a number of IP rights and each individual elements of the same should be identified and considered for protection. This is particularly the case, depending upon the type of advert. That is to say, pop-up ads are likely to be a little more complex and potentially involve a number of separate IP rights, whereas the ‘billboard’ advertising will have less rights attached.
Creative Content
This can include any literary elements, videos, graphics, photographs, artwork and music. Each of these can be protected by copyright and it is worth identifying the owner of the copyright in each case. It is also worth bearing in mind that you may need to seek permission from the copyright holder if using material that is not created by or for you.
Signs, slogans and sounds
Each of these are generally best protected by a way of obtaining a trade mark registration. By definition (insofar as trade mark law is concerned), ‘signs’ can include words (and so business names), logos, colours, sounds and even smells. Of course, combinations of the same can also be protected by way of a registration, providing that the mark can perform the essential function of a trade mark; that is to guarantee trade origin. A trade mark must be distinctive for and not descriptive of the goods or services, nor their characteristics.
Slogans and sounds can be a little more problematic to register, although certainly not impossible by any means. Consider the McDonald’s slogan I’M LOVIN’ IT (I’ll bet you sang that; in fact, that musical jingle is a registered trade mark!). Although not necessarily registerable at first sight, McDonald’s demonstrated acquired distinctiveness through the use of the mark and obtained a registration on that basis.
Graphical User Interfaces
More commonly known as GUIs, these, together with computer-generated graphic symbols and screen displays, can be the subject of a trade mark registration, again assuming that such are distinctive. Additionally, or alternatively, such elements can also be protected by design law, including registered designs. Design registrations have many advantages, including a very fast registration process (typically within a week from filing) and (unlike trade marks) are registered irrespective of the goods upon which the design is placed. Accordingly, a broader scope of protection can be obtained through a design registration as including the registered design on any goods may constitute an infringement.
The main challenge facing GUIs is that a UK design registration has a finite life of 25 years, subject to payment of renewal fees every five years (c.f. UK trade mark registrations that can remain in force indefinitely, subject to payment of renewal fees every 10 years). The short lifetime is not always detrimental as the design is likely to change over time either because of a refresh or as design trends change. As the games themselves tend to have a finite lifetime, this is not necessarily problematic.
A design must be ‘novel’ and so preferably not publicly disclosed prior to the filing of a design application (some countries provide a grace period for YOUR disclosure (not those of others). That being said, a design registration is validly registered unless and until the validity is challenged and so can at least act as a ‘keep off the grass’ sign. In any event, if a design registration is of interest, it is highly advisable to seek advice and register the design BEFORE public launch.
Packaging or shape of the goods
As with the GUIs mentioned above, the packaging or the shape of the goods can also be protected by way of a design and/or trade mark registration.
What should I do?
Advertising campaigns require significant resources and investment, particularly in terms of time and money. The creativity, skill and effort that goes into each advert is worthy of protection. Each aspect of the advert needs a strategy to identify and protect the aspects that can, and should be, protected.
Accordingly, you should
- Identify any and all copyright material and identify the owner; ensure you have permission to use any copyright material that is not owned by you; mark any advertising material as copyright and include an accompanying copyright notice;
- Clear for use and register your trade marks.
- Identify any elements that could be subject to a design registration, and register the same.
Please contact Murgitroyd for any questions or advice about protecting your advertisements to ensure your intellectual property assets are properly secured.
