From Pixels to Protections: Understanding Gaming Trademarks

9th January, 2025 - 7:09 am Categories: Trademark 0 Comments

Abstract

The gaming industry is one of the world’s fastest growing industries, crossing from being the source of entertainment turning into a lucrative enterprise with diversified revenue streams. Since digital gaming emerges into the new horizons, there develops a need to protect the gaming assets or the intellectual property related to these games, mainly through the Trademarks, which form one of the most significant portions of the game’s identity and brand equity. Trademarks in the gaming industry cover game titles, logos, character names and their avatars, and other distinctive visual or audio features that distinguish one game from another. This blog looks at the strategic use of trademarks in the protection of gaming assets through an examination of the interface between intellectual property law and the gaming ecosystem. It discusses the role of the judiciary and practical approaches intending to enlighten how developers, publishers, and other related parties can navigate through this legal net so woven to secure their creations by focusing on Indian legal system.

Introduction

The digital gaming industry has experienced tremendous growth during the past few decades. Technologies have evolved to bring more realism to the game experience with extremely immersive gameplay and allowed a global community of players to grow. Gaming assets including the designs of the characters, avatars, storylines, taglines, slogans, logos, and unique audio and visual elements, all contribute towards a game’s overall marketability and make them stand out amidst an over-crowding marketplace. In India, the gaming industry is experiencing a boom because of the easy availability of affordable smart phones, high internet penetration, and increasing number of youth’s interest in the gaming industry. This boom brought with it the urgent need for a robust legal system especially trademark rules to safeguard the gaming assets.

Unlike copyrights, Trademarks protect the symbols, words, sounds, taglines, slogans and designs or special character that forms the brand identity of a game and makes the brand different from the other in the market. This distinction is especially relevant in the Indian context wherein gaming companies uses their brand recognition more than the brand name to enter the fray of a large, price-sensitive market. For instance, games such as “PUBG Mobile” which later rebranded as “Battlegrounds Mobile India” have utilized its registered name trademark to maintain its visibility and legal standing even despite regulatory challenges. The Trade Mark law, 1999 in India ensures that the registered trademark elements remain exclusive to the registered proprietors and do not cause any confusion among the general public or consumers but rather encourage the trust towards the brand.

Trademark protection for assets of online game, video games etc. in India is governed by the Trade Mark Act, 1999 and the Trade Mark rules, 2017, which provides the comprehensive procedure for safeguarding the trademarks of the gaming firm. It includes the procedure for registration, enforcement as well as the management process of the Trademarks. This registration process helps the gaming companies to safeguard their various elements, including but not limited to game title, logos, designs, special character, slogans, names of the character and sometimes even the audio and visual elements contributing to the easy recognition of the brand. The registration process starts with the filing of an application of Trademark registration with the Trademark Registry which is followed by examination by the registry and potential opposition within the four-month period. Once it is registered, the exclusive right to use the trademark are given to the registered proprietor or the gaming company who will enjoy its usage and can also take any legal action against its infringement.

Another important aspect of the trademark protection of gaming assets in India is the role of opposition proceedings. In fact, the Trade Marks Act, 1999, provides the right to third party to oppose an application for registration of the trademark if it feels that the proposed mark infringes on the existing rights in the market. This has also played an important role in the gaming industry where numerous developers are competing with each other to create brand identities in a burgeoning marketplace. “One of the landmark trademark dispute in the video game industry was that of between King.com, which designed one of the world’s top games, including “Candy Crush Saga”, and Stoic Studio, which designed “The Banner Saga”. King.com filed an application for the registration of its usage of word “Saga” in 2014 and then opposed Stoic Studio’s using of the term Saga in its game name arguing that using “Saga” in the title would likely cause the confusion among the players. This was one of the disputes that drew attention to the problems associated with the trademarking of common words and the potential for overreaching in trademark claim. Stoic studio in the present case argued that their title is different from the Kings.com game title and the players would not be confused between the two. The case eventually settled, and both parties continued using their respective titles. The dispute underscored the importance of carefully considering the scope of trademark protection and its potential impact on other developers.”

What can Trademark cover in gaming industry

In the gaming industry, Trade Marks encompass a wide range of elements, including names, logos, slogans, characters, and even the specific game elements including visual and auditory elements that distinguish one game from another. These trademarks serves to create a unique identity and facilitate consumer recognition and protects the distinctive marks used in trade and business.

The most basic and significant characteristic of the game in itself is its name. The title or the name of any game not just serves to identify it, but it also becomes an absolute constituent of the brand identity. Popular game names including PUBG, Ludo King, Candy Crush, Temple Run, Teen Patti, Dream11, any many more are the registered names of the game are which are considered as the trademark of the games or the gaming company in order to ensure exclusivity. These names are integrative to the consumers experience because they are the primary names in a crowded gaming marketplace where hundreds of games exist with different names. This protection of the name of the game by registering them or trademarked them ensure that the competitors cannot use the same to mislead the consumers.

Along with the name of the games, logos also become a tool for recognition and registering them as their trademark becomes important. Usually, logos contain the stylized designs, color schemes or any other distinct symbol that characterize the brand. For example in India, the logo of the fantasy game Dream11 is also registered under the Trademark Act, 1999 with its different and unique design to claim the usage of it exclusively. Similarly such as the logo of Chhota Bheem games based on the popular Indian Cartoon character are also registered trademark ensuring their distinctiveness.

Taglines and slogans are also very widely used for marketing of these games or the platform on which these games or series reside that to happen to be a trademarked one under the Trade Mark act, 1999. Taglines such as “Ab Jeetega India” by Dream11, “Take the Idol and Run” in Temple Run, “India ka Apna Game” in Ludo King and many more. These taglines and slogans catch an echo within the Indian Hearts, as this goes about doing a piece of line-up within brand ethos marketing. Taglines or Slogans are memorable enough to materialize the brand identity in the minds of the consumers or the players.

The characters that exist in the games can also become the property of the game owner or the gaming company on account of the trademark rights, say for example, avatars like Chhota Bheem, Super Mario, Angry Birds, Motu Patlu and many more owned by the many different gaming companies have their exclusive rights on these avatars only because they have registered them under the trademark law. Indian law and judiciary have also realized the need to protect such intangible properties from unauthorised use so that their use is actually fair and exclusive to its rightful registered owner.

Despite these protections, Gaming companies in India often encounter or faces several challenges in enforcing their trademarks rights. The cross-borders nature of the global gaming industry where the infringement has cut across several jurisdictions and complicate the enforcement process involved. Additionally, the developing phenomenon of counterfeit merchandise and unlawful adaptation of popular games pose many other challenges to the developing software.

When to register the gaming asset

The Trademark application should be ideally filed as soon as a trademark has been finalized, preferably before initiating the pre-launch marketing or the release of the gaming product or asset. This ensures that the trademark owner establishes their priority in claiming the rights over the mark. The trademark registration process in India as governed by the Trade Marks Act, 1999, is handled by the Office of the Controller General of Patents, Designs and Trademark. However, the process is not instantaneous and typically spans over months and sometimes years, depending on various factors, including objections or oppositions raised during the examination period.

Currently, the Registrar examines the application based on their filing date rather that the date of actual usage of the trademark. This means that the priority of an application is determined by the order in which it is filed, not by the date of the trademark was first used in commerce. If another party applies for a similar or identical mark after your filing date, your application will have priority in the review process. Your application will proceed to registration if no oppositions are raised within the prescribed time frame of four-months after publication of the mark in the trademark journal.

In the event of dispute, such as opposition proceedings initiated within the four-month period by some other proprietor who claims prior use of the mark, the applicant may be required to provide the evidence of prior usage to establish their claim. In India, the principle of “First to Use” takes precedence over the “First to File”. This means that even if you filed first, a party that can demonstrate the prior use of the mark in commerce may challenge your application. Consequently, delaying the filing of a trademark application until after the gaming asset or product is publicly revealed can be risky. Competitors or third parties may file for registration of the same or a similar mark, forcing you to initiate costly and time-intensive proceedings to assert your rights.

Also putting the gaming asset or the game in the market without the trademark application being filed and making it registered for its exclusive use makes you susceptible to the threat of others using the same trademark for similar products and giving them identical or deceptively similar names, therefore the registration of the intangible asset becomes important under the trademark law. There is also and expedite procedure for the trademark application which is known as “Expedited Procedure”, according to Rule 34 of the Trade Marks Act, 1999”.

Conclusion

The cost of development of any type of the game can be very high, from millions to billions depending on the factors like platform, artwork, complexity, and licensing. As the industry grows, the importance of intellectual property law protection is being looked at closer. The trademarks are indispensable tools for safeguarding the gaming assets, serving both the shield against the infringement and the catalyst for the brand growth. At the end, the early filing is essential to protect your gaming assets and trademarks in India. Proactively securing trademark rights ensures legal protection and prevents unnecessary disputes or financial burden arising from delayed filings.

Author: Ishika Soni, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

Types Of Intellectual Property Rights In Gaming Industry | Everything you should know

https://www.researchgate.net/publication/348550053_Intellectual_Property_Rights_of_Gamers_in_Esports

https://www.forbes.com/sites/erikkain/2014/01/23/candy-crush-saga-tries-to-crush-the-banner-saga-in-bizarre-trademark-saga/

https://juristsjunction.in/2024/06/05/gaming-industry-and-intellectual-property-rights/