Win, Lose or Draw- Protecting Board Games in a Competitive Marketplace

By: JOHN C. PICKERILL

May 2008

Did you just create the next great board game? A Monopoly® or Trivial Pursuit® which promises to revolutionize family game night? You might be surprised how easy it is for imitators to take advantage of your creativity and churn out knock-offs of your game. Unfortunately, there is no single method for protecting a board game in its entirety, but you can create a patchwork of protection from various intellectual property disciplines to make it more difficult for copycats to usurp the market for your game.

Copyright

The “idea” for a game cannot be protected by copyright. Neither can the name of the game or the method of play. Copyright protects only a specific author’s expression of the game board or the rules associated with a game. Copyright protection does not extend to any idea, system, method, or trademark material involved in the development, merchandising, or playing of a game. Nothing in the copyright law prevents others from developing another game based on similar principles.

However, material prepared in connection with a game can be subject to copyright protection, if it contains a sufficient amount of literary or visual creative expression. For example, the text matter describing the rules of the game, the pictorial matter appearing on the game board, packaging design, etc. are all most likely protectable. Copyright protection would even extend to game rules describing the exact same rules in a different manner.

Also, arrangement of information can be protected under copyright law. For example, the layout of the game board may be protectable as a copyrightable compilation, even if the individual elements are not protectable. While a specific version of a game board can be protected under copyright, it is permissible for others to organize a game based upon the same idea - as long as the board is compiled and created in a different manner.

Trademark/Trade Dress

Trademark law provides protection for the marks used in connection with a game, and can stop the use of similar terms in connection with other games in a manner likely to confuse consumers that both games were produced by the same company. As a result, the particular name of a game is protectable under trademark law, along with any other unique marks used in connection with the game. Also, trade dress can be similarly protected to the extent the game’s appearance and design elements function to identify the maker of the board game, rather than just ornamentation for the board game.

Patent

There are three basic requirements for the patentability of board games. The game must be (1) new, (2) useful, and (3) non-obvious.

To be “new,” the game must not have previously existed. To be “useful,” an invention must be capable of some beneficial use in society. Recreation and amusement are considered beneficial purposes, so board games generally satisfy the utility requirement. The last, and often toughest, hurdle in obtaining a patent is the requirement that the invention not be “obvious.” This is a subjective test which asks whether an average person familiar with board games would find the game to be an obvious modification of games already existing.

It is important to note that “printed matter” alone does not qualify for patent protection. Features of the board game which might constitute printed matter include the color of the game pieces, and possibly, the rules of the game. Thus, the new, useful, and non-obvious features of an invention must be associated with its structure or method of use, and not based solely on the printed matter. The patentable differences between games and, consequently, the protection afforded by game patents, can sometimes be fairly limited.

So, if you do create the next great board game, make sure to factor in intellectual property considerations before finalizing materials and hitting the open market. By beefing up copyrightable elements and incorporating strong, protectable trademarks, you can make sure your game continues to stand tall on store shelves long after the imitators have moved on.