You have a great idea for a new game. How do you protect your rights to this game before someone else comes up with the same idea?
The first and most crucial point to remember is this -- you have no protection while your game is in the 'idea' stage. The law only protects the 'expression' of an idea.
Keep your game secret until you have described it in writing and reviewed it with a legal professional experienced in this area of the law. Date and sign each page of your notes to establish a date of creation.
There are many aspects of your game that can be protected. These aspects include the rules of the game, instruction manuals, game questions, game boards, drawings, game pieces and the name that you choose to call your game.
Copyright applies to every original literary, dramatic, musical and artistic work. Literary works include the rules of your game, instruction manuals and game questions. Game boards and drawings qualify as artistic works. Other aspects of your game may also be protected by copyright.
Copyright arises automatically in Canada by the creation of the work. You should place a copyright notice on your work identifying your name, the copyright symbol ©, and the date of first publication e.g. Copyright © David Wray 1996. Generally, copyright protection lasts for the life of the author plus fifty years.
Registration of your copyright is optional but recommended. A certificate of registration is proof that copyright applies to the work and that the person registered is the owner of the copyright.
Game pieces such as various styles of chess pieces can be protected as Industrial Designs. Industrial Design protection applies to the shape, configuration, pattern or ornament of an article. If you produce more than fifty copies of your game board, and it has original design features, then it can also be protected as an Industrial Design.
Industrial Design protection arises through registration of your design. Once your design is registered, mark your article with the capital letter 'D' in a circle and your name. Industrial Design protection is for ten years, with a maintenance fee payable at five years.
Novel functional aspects of your game are not protected as Industrial Designs but may be protected under the Patent Act. An example of a puzzle game with functional features is Rubik's Cube®.
You can protect the name of your game and any design features which you use as a trade mark. A trade mark is a word, series of words, design, or some combination thereof, used by a person to distinguish his or her goods from those of others. Identify your trade mark by the letters ® with a footnote identifying the trade mark as such together with your name.
Examples of trade marks include the word Monopoly® and the character of the moustached elderly gentleman that appears in the same game.
Trade mark protection arises in two ways; at common law and through registration of your trade mark.
Common law trade mark rights arise when you sell your game with the trade mark displayed. These rights are limited to the geographic area in which you sell your game (e.g., Ontario).
A trade mark registration, on the other hand, applies for all of Canada. You can file a trade mark application based upon your past use of the trade mark, or upon your intention to use the trade mark in the future.
For a game that you are still developing, the ability to file a trade mark application based upon your intention to use the trade mark in the future is a considerable advantage because it effectively reserves your interest in a particular trade mark.
A trade mark registration is for a fifteen year term, renewable indefinitely. There is an on-going requirement that the trade mark be in use.
Make sure that your game is properly protected before you tell anyone about it. What you have conceived is a game - protecting it is not.
Copyright © R. William Wray & Associates 1996
Article written by David Wray
Published in Eureka! magazine Spring 1996
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Copyright © R. William Wray & Associates 1995-2007 All rights reserved.
The comments contained herein provide a brief overview only and should not be regarded or relied upon as legal advice or opinion.
01/2007