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By Virtuoso Legal

10/08/22

IP Insight: Nintendo, Pirates, and The Art of Enforcing Your Videogame’s IP Rights

IP Insight is a series from IP specialists Virtuoso Legal covering key areas in IP Law. This insight looks at how Nintendo has recently enforced ownership of its IP in the UK.

Photo by Alvaro Reyes on Unsplash

By Christos Sakellaropoulos

Disclaimer: This insight should not be construed as legal advice on any specific facts. The contents are intended for general informational purposes only. You are urged to consult your own solicitor on any specific legal questions you may have.

 

Introduction

 

Video games encompass complex and, yet exciting, challenges for legal professionals, including IP specialists like ourselves.  In fact, IP in video games is so vital that it is very often overlooked by both game developers and players alike and oftentimes neither of them realise that they interact with IP when creating or playing a video game. As David Greenspan et al point out in an article of WIPO Magazine: “IP is the lifeblood of the industry. IP rights are associated both with the tools used to develop games and the content included in a game.”

The reasoning behind this statement is simple: video games encompass a wide range of creative components, from music and visuals to mechanics and code and even such technologies making their creation of such massive works of art itself possible. Without these ingredients and tools, there would be no final product. An important consideration for IP in that respect is that all these components, whether taken on their own as individual components making a game or as the final product of the video game itself, are usually afforded some form of IP protection.

Given the hard work and lengthy process that is creating video games, it comes as no surprise that (big) game developers, such as the likes of Nintendo, Sony, and Microsoft, are looking to affirm their position in protecting their IP and commercial viability of their games. To this day, video games are an entertainment medium that is heavily pirated, with losses for developers amounting to billions of pounds per year. No surprise there, of course, considering that loss of IP in some form directly correlates with loss of profit.

On the topic, a major example of a company that is highly protective of its video game IP is Nintendo. In one of its latest crackdowns against British internet service providers, Nintendo asserted itself as one of the gaming giants that are in the market of building video games for a profit but are not “playing any games” (or tolerating anyone else to do so) without it seeing its share of the profits.

 

 

Background

 

Nintendo claims undisputed popularity in the realm of video games, manufacturing, developing and selling video games for a variety of audiences with original and authentic titles under its belt. One only needs to be reminded of titles like Super Mario, Donkey Kong, Pokémon, and The Legend of Zelda. But with great fame comes an equally greater responsibility to strike down those who harm your business’s good name and brand quality.

In Nintendo Co Ltd v British Telecommunications Plc [2021] EWHC 3488, Nintendo sought injunctive relief from the Court to prevent access to websites that offered its games to users free of charge by seeking action against internet service providers themselves. In the first place, the IPEC affirmed Nintendo’s extreme popularity in the video game sector and further noted the obvious desirability of consumers wanting to access Nintendo games for free in the UK.

To that end, the Judge granted the injunction both in terms of Nintendo’s claim for copyright infringement and trade mark infringement. The Judge was satisfied that the copyright subsisting in Nintendo games was being infringed by operators providing access to and users downloading the games from such websites. Further to that, the Judge also found infringement of Nintendo UK’s registered trade marks because of the website’s use of its exact marks to target the average UK consumers in the video game market.

The Court further substantiated its infringement finding by considering the outright purpose for which these websites operated: the promotion and distribution of counterfeit versions of Nintendo games which the Judge described as “a quintessential example of infringement”.

 

 

Our insight

 

Nintendo’s aggressive approach towards asserting its IP rights may well be justified based on its position in the video games market. But, in reality, it should be no surprise that this would be the position of our experts as well, whether you are Nintendo or a smaller-scale individual game developer.

Sufficiently and properly managing and asserting the position of your IP entails more recognition for your brand and quality of games, which by an extent entails more sales for your games, which by an extent result in more profits for your company. Put simply: asserting your business’s IP rights equals profit. Period.

Furthermore, the present and constantly evolving tools and technologies available for creating video games present fantastic opportunities for professional developers or even game enthusiasts to create impressive ever-expansive universes that captivate, excite, and move. However, the challenges present in such a digital medium, as with any rapidly evolving industry which intersects with novel technological tools, are equally abundant.

Luckily for your, our experts at Virtuoso Legal possess all the necessary skills and capabilities to assist with handling all aspects IP related to your interactive entertainment and video game company, from copyright to trade marks to commercial matters and all in between. The question is, are you willing to take your game to the next level?

 

ABOUT VIRTUOSO LEGAL

Virtuoso Legal is a team of intellectual property specialists based in Leeds and London - operating worldwide. Virtuoso Legal's team of IP experts have successfully tried cases in the IPEC, High Court, Court of Appeals and United Kingdom Supreme Court. In addition, the team assist companies in creating, commercialising and protecting the big ideas that make their business unique. The firm and its professionals are ranked yearly in legal directories such as the Legal 500 and Chambers and Partners, cementing their status as a Top 2% law firm in the world.

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