Buff Your IP: Tools for Gamers to Level Up Brand Protection
By Jeff Villalobos
It’s 2019, and the esports industry has settled into its role as one of the fastest growing industries. Long gone are the days where gaming was only associated with wasting time on the couch. There are multimillion-dollar investments being made, arenas being erected, college scholarships being awarded, and international athletic visa’s being granted.
What does that mean for gamers? It means that their talents are opening up portals to fame, that their brand is worth a lot more than they’re projecting, and that legal noobs should learn how to appropriately protect their brand.
Unlike other professional athletes, gamers have much less freedom to develop their brand because many of the intellectual property rights are reserved by publishers, leagues, and teams. Without a broadly accepted players union, gamers and upstart teams should carefully consider the best ways to legally protect their brands.
An overarching brand strategy can help gamers maintain airtight endorsements and increase monetization of their unique skills. Special moves that gamers should know about include gaining trademark protection, acknowledging copyright risks, and ensuring advertising compliance.
From gamertags to team names to famous taglines, a gamer’s “brand” is where most of his/her value will be held. Trademark registration, licensing, and enforcement are the most effective tools to protect a brand. Proactive teams and gamers that are aware of this have applied for and registered their marks to protect themselves from griefing trolls or other infringers who may monetize the brand without permission. Registering marks also helps streamline sponsorship agreements with potential developers, energy drinks, apparel brands, or other potential partners.
The scope of protection for a trademark registration is based on the goods and services classes claimed by the trademark applicant. When contemplating trademark registration, gamers and teams should consider all of the goods and services that they offer or plan to offer. For instance, will they be using their trademark for future fan apparel? Games? Toys? Common classes for gamers and teams include:
- Class 009: Audio/video recordings featuring video game playing, headphones, and mouse pads
- Class 016: Trading cards and stickers
- Class 018: Backpacks and related bags
- Class 025: Apparel including t-shirts, caps, and beanies
- Class 028: Gaming gloves, action figures, and game controllers
- Class 035: Services including online retail sales and advertising and promoting the goods of others
- Class 041: Entertainment services, including performances featuring competitive video game playing and narration
Scope of trademark protection is also based on geography. In general, trademarks are only protected where they are registered and/or used. Gamers should carefully consider where they plan to operate. Because competitive gaming can arguably take place anywhere with an internet connection, it is important for players to register, at a minimum, in the countries where they most often compete. What this means for U.S. players is that they should look to register their trademark/brand outside of just the U.S. Patent and Trademark Office.
Because trademark protection often hinges on who used it first, it is imperative that players protect their trademarks/brands early on to prevent finding themselves in disputes in the future. Individuals and gamers should consult with an attorney not only to register their mark, but also to ensure that they don’t accidentally infringe on a prior user’s mark. Adopting an infringing name after someone else is using it could result in having to change your name or beg for permission from that trademark owner to use it (which might have you searching for loot to pay it off).
Most esports businesses are subject to the whims of game publishers, which ultimately own copyrights to the overall gameplay and character designs. This all-encompassing intellectual property right creates extra levels of legal wrinkles not present in traditional sports.
Game publishers have been mostly quiet when it comes to allowing players to record and publish themselves playing speed runs, finding Easter eggs (hidden effects/levels hidden by gaming developers in the process of the game’s creation), and giving leaked reviews of the most anticipated games of the quarter. Why? Perhaps it is because it is essentially free marketing. Game publishers benefit from tons of exposure through TWITCH! and other content platforms, but they could easily pull the plug on gamers posting content without publisher permission because the content is protected under copyright law.
Some TWITCH! players have already been served takedown notices under the Digital Millennium Copyright Act for recording and uploading gameplay with copyrighted music playing in the background without permission. Ultimately, the punishment was a quick slap on the wrist in the form of a 24-hour timeout, but there remains a risk for stricter enforcement.
While gamers currently enjoy monetizing streaming their content, and there are arguments to be made that unique gameplay constitutes original pieces of work under U.S. copyright law, gamers should remain aware that they are susceptible to being accused of copyright violations.
For more established gamers who are making revenue off of endorsements big and small, they should be aware that their actions could also be regulated by advertising laws enforced by the Federal Trade Commission.
When a gamer (or any paid influencer) posts content of them using, sitting next to, or otherwise promoting a product that they are being compensated for in any way (monetarily, free swag, trips…etc.), they must disclose it clearly. That means it cannot just say “#ad” in the middle of a sea of other hashtags (this was specifically noted by the FTC). It must be clearly disclosed to the viewers that the player/influencer is being compensated for the promotion/advertisement.
Take for instance the players involved in the first ever FTC violation against social media influencers. Trevor Martin (Gamertag: TmarTn) and Thomas Cassell (Gamertag: Syndicate) were charged by the FTC for deceptively endorsing the online gambling services CSGO Lotto without disclosing that they jointly owned the company. Further, it was alleged that they paid other influencers and gamers to promote the game without requiring them to disclose that they were being compensated for doing so. To make sure you are promoting your brand and your endorsers properly, contact your attorney or review the FTC’s endorsement guides.
All in all, before you start streaming your next session or if you decide to change your tag, talk to knowledgeable counsel to protect your brand.
Special thanks to Vela Wood law clerk, Elizabeth Chung, for her assistance with this post.