Protection of (game) characters

01 November 2021

Who doesn't know a bunch of game characters. For example Pikachu, Lara Croft, Sonic or Mario Bros are renowned worldwide. Game characters are the movie stars of today. Each and every one of them are iconic appearances that have enormous brand value. But how do you protect these types of characters? After all, these characters have various poses and expressions that are difficult to capture in a single registration. And what is the scope of protection?

Options for protection

The first option to protect the character is under copyright law, provided that the character is original. The advantage of copyright is that in most countries registration is not necessary to gain protection. This is useful, because the characters have various poses, expressions and movements, which makes registration inflexible and awkward.

The second possibility - and often wise to do - is to register a character as a design. You will obtain a registration certificate which can turn out to be very useful in infringement matters. You can register different poses and/or expressions in 1 design (maximum 7 per design in the EU). The variations can therefore be included, but the amount of variations are limited. So you will have to think carefully in advance which poses and expressions you want to protect.

Option number three is to register a character as a trademark. This concerns 1 pose or expression of the character. The advantage of a trademark registration is that it is not limited in time.

All these protection options can run side by side, but often a targeted strategy makes sense.

What is the scope of protection?

The scope of the protection cannot be estimated in advance, much depends on the creative choices that have been made. The more original, the greater the scope and the sooner there is a reproduction of the work or a design with the same general impression.

So what can you act against?

In short, copyright and design law concerns the resemblance between the characters.

Is the overall impression consistent? Do the original elements return in the contested character?

In respect of trademark law, there must be a similarity too. The similarity is assessed on the basis of a visual, aural and conceptual similarity. Please note that often it is not enough that there is a conceptual similarity. The fact that two trademarks represent a “cartoonish elephant figures” will not automatically lead to a similarity. There must be visual similarity between these elephant figures too.

An example: the EUIPO recently took a decision in an opposition procedure that concerned two game characters. These characters are meant for slot machines. They are two different characters with a different overall impression. Both characters depict a doll with a bowler hat, but that's about all. The number of eyes differs, the pose is different, the print on the bowler hat is different, the shape of the dolls is different, the position of the feet is different, etc. The opposition was therefore rejected.

There must therefore be clear similarity. Nevertheless, it is very wise to protect a character in order to act in the event of infringement.

Would you like to know more about this? Please do not hesitate to contact one of our trademark attorneys.


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