Staking your claim to Intellectual Property

Intellectual Property is the bedrock of any creative industry, yet many companies fail to appreciate its value, and so underestimate the need to protect their IP rights.

Consider one of the world’s top brands, Coca-Cola. If given the choice by some modern-day genie conjured from a vigorously rubbed Coke can, would you rather own Coca-Cola’s IP, or all the bottling plants that make the beverage? Think hard: The IP rights and the squiggles that comprise Coke’s logos are unique and world famous, whereas the factories are interchangeable. Indeed, Coca-Cola is built on its IP – it simply sells ingredients and manufacturing rights to franchisees across the globe.

In the early days of computer games, Coca-Cola equivalents were rare. Business was driven by a churn of new titles and innovations rather than established names, and games publishers had to buy-in movie licences if they wanted a shortcut to standing out from the crowd.

Today, game franchises – from GTA to Halo to Warcraft – dominate the charts. Moreover, companies are exploring the commercial potential of game brands outside of the interactive entertainment industry, and increasingly licensing their IP rights to filmmakers, toy manufacturers, and book publishers.

With IP now critical to the value chain, developers and publishers must adequately protect their intangible assets if they are to enjoy the fullest revenues possible. Allow IP to dilapidate and its value will diminish, just as with any other asset. In contrast, protecting IP increases its uniqueness and distinctiveness, and thus boosts its value.

Protection in practice

The more steps you take to protect your IP, the better you can bring pressure upon anyone trying to infringe it.

Convincing a court that you have suffered from copyright infringement is far from trivial. Protection isn’t simply a matter of legal rubber-stamping – should your case go to court, you need to demonstrate you’ve taken clear and consistent steps to protect your IP within the existing legislation for copyright, trademarks, patents, passing off, database rights, design rights, data protection, confidentiality, moral rights and performance rights.

From the moment anyone in your company has a potentially valuable idea, put it in writing. Date all ideas and identify their authors. Subsequently, create an electronic trail that documents how you developed the property, including concept artwork, design notes, prototype software, and even emails and minutes.

Of course, formal steps must be taken too. Trademarks, patents, copyrights and design rights should all be secured across different territories. Internet domain names should be registered to save possible conflict later.

Keep ongoing developments confidential. Ask anyone from outside your company to sign a non-disclosure agreement before revealing new IP. If that’s impractical, stress any information they receive is confidential, and not to be used without your permission. Your own staff, too, must ensure confidentiality. Employment contracts should expressly protect your company’s IP, and all staff must be made aware of their responsibilities.

The other strand to protecting your IP is strong action against any infringement – swift and decisive action reduces the impact on your IP, and minimises any loss of revenues. Longer-term, a robust stance acts as a deterrent.

Coca-Cola has been protecting its IP for over 100 years. With technology ever-changing and new formats regularly emerging, games companies should expect to do the same.

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