How to protect IP as a gaming company

Of all the challenges gaming companies face, protecting their intellectual property could be up there with one of the greatest.

Intellectual property is often intangible but is also a cornerstone of much of what gaming companies do. From branding to storylines, avatar characteristics to code — the list is endless, which is why this is such a difficult space to navigate.

So what is intellectual property and what can gaming companies do to protect theirs? Read on to find out.

What is intellectual property?

Intellectual property (IP) refers to creations of the mind — it’s a broad term for intangible assets. This includes everything from ideas and inventions to designs, artwork, symbols, logos, stories, and brand names.

Even though you often can’t physically hold intellectual property, it’s an incredibly valuable asset. It often represents a business's competitive edge, built over time through creativity, skill and investment in people and talent.

In many cases, intellectual property can be worth far more than a company’s physical assets, making it a vital part of its overall value.

For research-heavy industries, like gaming, there is an increased need to protect assets and creativity from interference by competitors. Whether the competition steals your IP or accuses you of stealing theirs, a legal claim can wipe smaller companies out — which is where intellectual property insurance comes into play.

How can gaming companies protect their intellectual property?

Over 14,000 digital games have been created, most developed by smaller-scale, independent studios vying to be the next Rockstar. With so many players in the gaming space, the likelihood of potential IP disputes increases substantially.

While professional indemnity policies may cover some intellectual property disputes, gaming companies often benefit more from a standalone intellectual property policy, which offers broader and more robust protection.

This type of policy can offer defence and pursuit costs for potential breaches of copyrights, trademarks and other intellectual property. For both smaller gaming studios and household names, having cover for defence and pursuit costs can be a lifeline and alleviate potential cost pressures faced from litigation.

Considering worldwide coverage when taking out a standalone IP policy may also be beneficial. Gamers are dotted across the globe and so are the competition. Any studio around the world can target gaming companies — and with the USA and Canada having a reputation of being notoriously litigious with IP claims — it can be an important addition.

Intellectual property claims

There have been a few high-profile IP claims against gaming studios in recent months which are key to highlight here.

Nintendo vs Pocketpair

Nintendo has filed a lawsuit against the small Japanese gaming studio, Pocketpair, for patent infringement claiming similarities between the characters and their personalities in its game Palworld and that of Pokémon.

In the gaming world, it can be easy to cross this line. It could be argued the breach was intentional given the popularity of the Pokémon characters. Some smaller studios might be tempted to do this to gain instant traction as the characters are easily recognisable and draw users to their game.

According to a Games Radar article, “One analyst reckons that Nintendo's laundry list of patents means it could have sued countless games over the years, but the company is only targeting Palworld over its similarities to Pokémon now because it's inclined to do so”.

IP claims can be long and strenuous and involve a lot of evidence. In this case, it could be argued that the Pocketpair team came up with their own ideas through focus groups and customer feedback, which is why it's important to have a policy that can assist with legal costs.

Tofu Rabbit vs Bungie and Hasbro

This is like a low-level character going into a boss fight that they know they’re probably going to lose but ultimately coming out victorious.

On 11 September, a post appeared on X (formerly Twitter) saying that a toy Nerf gun directly copied the posters’ original designs.

Claims like these are difficult because it's not just gaming studios that face IP claims but people offering ancillary services to the gaming industry who can also be affected. Destiny 2 developer, Bungie, will likely have an IP policy in place to face off these lawsuits and potentially offer quick settlements to avoid brand reputation damage — which is exactly what happened.

Just a few days after the post surfaced on X, Bungie confirmed that Tofu Rabbit would be compensated and credited for their work. Otherwise, this could have become a David and Goliath situation where the smaller players take on the big conglomerates.

So what should gaming companies do?

When it comes to intellectual property, there are a few things that gaming companies can put in place — as well as IP insurance — to ensure that the hard work they’ve put in doesn’t get evaporated by the bigger players.

Firstly, consider working with third-party IP protection companies that manage and protect IP rights. They can be both specialised or generalist, offering the following services, including:

• Support in finding and removing infringing downloads and mobile infringements
• Custom services to find unauthorised apps on official apps, third-party stores or Discord channels, and removal of infringing videos on user-generated platforms
• Removal of copyright content from unauthorised digital goods sites, like torrents
• Finding and disallowing unlicensed or counterfeit merchandise
• Removing IP infringement on social media, user-generated content or standalone sites

Secondly, think about working closely with an intellectual property lawyer involved in the development of games, expansions and characters. Getting the green light from a lawyer from the outset can give you peace of mind knowing you’re developing something unique.

IP lawyers can also support you in registering trademarks, IP, copyrights and patents. Patents can be issued for game interface, design, methods and processes that make games unique.

For example, Blizzard registered the patent for the level and progression system of World of Warcraft — something that is instantly recognisable compared to other massively multiplayer online games.

Some of the things that can be registered as patents include:

• Gaming devices and consoles
• Virtual and augmented reality technologies for gaming applications
• Innovative game mechanics and interfaces
• Algorithms and software for game engines
• Methods of processing graphics and audio in games
• Improvements in artificial intelligence in game systems
• Protection against piracy and security measures in games

Some of the things that can be registered as trademarks include:

• Names and logos of game studios
• Video game names and logos
• Unique and memorable characters from the games
• Slogans associated with game brands
• Game series and franchises

Some final reflections

Intellectual property is the life force of any gaming studio. It represents the brand, the games and the growth of a company as their logo and name become more and more recognisable.

With this in mind, it’s important to protect this uniqueness and creativity through the channels available — namely registering patents, intellectual property lawyers and an insurance policy offering extra assistance along the way.

Think of your company as Mario — the face of the game — and these procedures as Luigi — a good side character that’s just as important.