Protecting game ideas

[ristacom]

What is the name of your state? Texas

I have several ideas for kid's games that I'd like to turn into a book for sale. Most of my ideas involve using existing products in new ways. For example, one idea might involve a hoola-hoop and a frisbee. Of course, those two products already have associated patents. What I'm interested in selling is my idea of how to use those two products in a new way (a game).

First, how are ideas for games protected? And second, how do I know if my ideas infringe on someone else's copyright or patent? There are thousands of kid's games on the market. I've already noticed a few in local stores that are similar to my ideas. Any help on this matter would be greatly appreciated!

 

[divgradcurl]

First, how are ideas for games protected?

In general, you protect games by either copyright or trademark. Copyright can protect the creative aspects, trademark can protect certain shapes, colors and words and phrases that become associated with the game. A patent on a game, while not absolutely prohibited, would likely be difficult bordering on impossible to obain -- it's just too hard to show novelty and nonobviousness with a game, especially if, as you note, there are already similar games out there.

But, beyond that, ideas themselves are not protectable. I could design and market my own game where people try to answer questions based on different subjects, and there is very little that Trivial Pursuit could do to stop me. They can likely keep me from calling my game "Trivia" or anything like that, I can't use pie pieces and a round board most likely, but I could still use the "idea" of answering questions in my own game. Trivial Pursuit is protected because the designs of the boards and pieces and box are covered by copyrights, and the name or the game, and certain other distinctive marks, are covered by trademarks.

And second, how do I know if my ideas infringe on someone else's copyright or patent?

Three basic ways. First, hire a lawyer to do the searching and to provide a noninfringement opinion. Second, search www.copyright.gov and www.uspto.gov yourself, and see whats out there. Also use google and other search methods. Finally, just make your game and wait and see if you get sued (not advised).

 

[ristacom]

Thanks

Thanks for the quick response. I've been looking through the copyright and patent forums, and I keep seeing your name over and over and over again. I'm glad there are people like you out there who are willing to help average Joe's like me.

From what you said, it sounds like I could write a book about game ideas with little risk of being sued. Of course, I would need to be careful what I call my games because someone may have trademarked that name. Am I thinking correctly?

What if I sold a package that included the book and all of the products that you would need to play the games? I wouldn't be claiming the products as my inventions; I would simply be reselling them. However, would the fact that I include patented products in my game package infringe on the patent holder's rights?

Maybe it's safer to just stick with the book. What do you think?

 

[divgradcurl]

From what you said, it sounds like I could write a book about game ideas with little risk of being sued.

Probably true.

Of course, I would need to be careful what I call my games because someone may have trademarked that name. Am I thinking correctly?

Generally yes. You have to be pretty careful when using another's trademark. There is a "fair use" exception for using another's trademark, but it's pretty narrow, and basically only allows you to use another's trademark to describe something where there is no other reasonable way to describe it, and if the use is purely descriptive.

What if I sold a package that included the book and all of the products that you would need to play the games? I wouldn't be claiming the products as my inventions; I would simply be reselling them.

It's perfectly legal to resell lawfully-acquired products, even if they are patented -- this is called the "first sale" doctrine, and basically it says that after a first lawful sale, the patent holder loses the ability to control noninfringing uses of that particular item.

Now, if you have the case where, say, a game involving tossing a basketball through a hulahoop is patented, then selling a kit containing a basketball, a hulahoop and instructions on how to play the game would probably be infringing (this is an absurd example, but is illustrative of the concept). Even though each of the items were purchased lawfully, creating a "kit" that contains all of the parts necessary to infringe a patent is itself infringing in many cases.

However, would the fact that I include patented products in my game package infringe on the patent holder's rights?

No, unless you did something like I described above, or if you bought one product and then reproduced it yourself -- that would be infringing. But buying and reselling is not infringing.

Maybe it's safer to just stick with the book. What do you think?

If you pay attention to what you are doing, selling the "kit" shouldn't be any more problematic (from an intellectual property standpoint) than selling the book alone.