It has now been over a year since the European Union Trade Marks Regulation came into force on 1 October 2017, which removed the requirement that trade marks needed to be graphically represented.
The EU Intellectual Property Office ("EUIPO") has therefore been accepting marks in a variety of different formats. The change in law is particularly exciting for video game developers, as it (in theory) allows them to trade mark particular gameplay clips or mechanics from their video games. One example of this is the EU trade mark application number 017282203 (which is still under examination by the EUIPO) for a 25-second clip showing an X-ray "kill cam" mechanic from the well-known Sniper Elite series, developed by Rebellion Developments.
The potential of a gameplay mechanic being trade mark registrable is an exciting time for video game developers. Traditionally, it would have been difficult for a video game developer to protect a specific gameplay mechanic. Whilst copyright may protect source code, videos, music, images and other creative elements within a video game, it would not generally extend to protecting underlying ideas or gameplay mechanics. It is also difficult to patent gameplay mechanics. The process to obtain a patent is time consuming and expensive, which is an important consideration as video game developers often have time-pressured deadlines to get the game to market, and so would not want their project delayed because of a pending patent application. Further, in order for the gameplay mechanic to be patentable, it would have to contain an inventive step which may be difficult to demonstrate. This difficulty in protecting gameplay mechanics partly explains why there are a large number of games on the market which all feel and play similarly, an issue particularly persistent within the mobile games market.
On the other hand, trade marks can be quick and cheap to register, and protect not only identical but also confusingly similar marks. Furthermore, a trade mark can potentially last forever, provided that it is renewed every 10 years and is not vulnerable to be struck-off due to non-use.
However, part of the issue with registering a gameplay mechanic as a trade mark is it still needs to meet the basic requirement of being a sign capable of distinguishing it between the product of different businesses. A consumer who sees a particular gameplay mechanic must be able to recognise such gameplay mechanic as coming from a particular source. This presents a potentially major hurdle for developers if the essential gameplay mechanic is already extensively used by other game developers, resulting in the trade mark potentially being unregistrable. A question game developers must therefore consider and be able to answer is "what part of the gameplay mechanic is protection actually being sought over when attempting to trade mark a gameplay clip?" If there are multiple elements to a gameplay mechanic, it may be more difficult for a consumer to easily identify a particular mechanic as coming from that game developer, and the mark is at greater risk of being opposed. Further, because trade marks can potentially last forever, the EUIPO may be cautious in accepting trade marks which prevents creativity and lawful use. Game developers must therefore be prepared to submit sufficient evidence to demonstrate to the EUIPO that their gameplay mechanic is indeed distinctive.
However, with a concise trade mark specification and a specific gameplay clip, there's certainly scope for game developers to protect their valuable gameplay mechanics. Further, at a time where graphics are arguably reaching their peak in this console cycle, this change in law may encourage innovation within the industry as developers file trade mark applications for their exciting and innovative gameplay mechanics.