Can My Game be a Brand?

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Can My Game be a Brand?

• J. Michael Monahan
• Pattishall, McAuliffe, Newbury,Hilliard
  Geraldson LLP
• Dr. Sunny Handa
• Blake, Cassels Graydon LLP

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INTRODUCTION

• Brand marketing concept
• Build a reputation.
• Set product apart from the competition.
• Trademark legal concept
• A tool to build and manage brands and maximize
  brand value.

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BRANDING Marketing Tool

• Brand Basics
• A brand
• - is the symbolic embodiment of all information
  connected to the product.
• - creates associations and expectations around
  the product.
• - is a message that, through use, can acquire
  recognition and a particular reputation for the
  product in the marketplace.

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BRANDING Marketing Tool

• Brand Basics (continued)
• A brand...
• - may be expressed through written, audio and
  visual content.
• ex. BMW logo emphasis on design The
  Ultimate Driving Experience luxury brand.

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BRANDING Marketing Tool

• Brand Basics Games
• Sound Graphic Design Characters desired
  gaming experience.
• ex. Rock Band and Guitar Hero
• Logo design
• Artist roster
• Music catalogue

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BRANDING Marketing Tool

• Brand Basics Games (Continued)
• What can be a brand?
• Consoles, platforms, games, publishers, online
  games.
• Examples of brands in the industry
• X-BOX (console), GRAND THEFT AUTO (game),
  ELECTRONIC ARTS and UBISOFT (publishers), WORLD
  OF WARCRAFT (online game), SECOND LIFE (online
  community).

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BRANDING Marketing Tool

• Brand Basics Games (continued)
• Characters as brands
• SUPER MARIO BROS.
• LARA CROFT
• SAM FISHER
• DONKEY KONG
• Why characters as brands?
• Represent the quality, story-line and game
  feature expectations of players.
• Represent the idea or the philosophy behind the
  game with which players identify.
• Provide a natural link between games and other
  products or merchandise

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BRANDING Marketing Tool

• Brand Basics Videogames (continued)
• Using Outside Brands
• Non-videogame brands appear in the game itself.
• Association with well-respected brand (i.e.
  COCA-COLA) enhances image of videogame.
• Real-life brand presence enhances immersive
  videogame experience by rendering it more
  realistic.
• Examples of Outside Brands in Videogames
• Product placement COCA-COLA and BATMAN in Tom
  Clancys Splinter Cell.
• In-game advertisements ADIDAS in Major League
  Baseball 2K7, MOBILE NETWORK 3 in Juiced 2 Hot
  Import Nights. 

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BRANDING Marketing Tool

• Brand Equity
• You have a brand if you have a product
• Key - focus the brand message to increase the
  products appeal and thus its value.

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BRANDING Marketing Tool

• Brand Equity (continued)
• Creating  brand equity 
• Having a message about a product and using it to
  attach a certain reputation to that product,
  which has a certain value.
• ex. Marvel publisher deals for online games
  based on Marvel characters.
• Importance of brand equity
• Asset accounts for 1/3 of value of Fortune 500
  companies.
• Sign of responsible company boost to investor
  confidence.
• Credibility helps in the context of commercial
  dealings.

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BRANDING Marketing Tool

• Brand Strategies
• Brand Strategy
• Creates the desired image to set product apart
  from the competition.
• Strong Brand Strategy
• Establishes strong feelings and reactions and
  favorable view towards company as a whole.

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BRANDING Marketing Tool

• Brand Strategies (continued)
• Strong Brand high brand equity, because
• easily recognizable
• immediate association of product with desirable
  idea, emotion, image.
• ex. ELECTRONIC ARTS has a strong brand.

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BRANDING Marketing Tool

• Brand Strategies (continued)
• Consider your own brand
• - Identify needs and desires of target consumer
• - Identify and assess competitions offerings
• - Live up to the brand statement

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BRANDING Marketing Tool

• Conclusion
• Thoughtfully developed brands stand out in a
  crowded marketplace.
• Branding builds stronger, longer-lasting customer
  relationships.
• Well-established brand makes product unique, not
  a commodity.

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Trademarks as Brand Value

• The way customers find you
• Critical asset
• Confirms equal quality from one game to another
• Carries desired message to future games and to
  non-game products

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A Few Terms of Art

• trademark is a mark for a product
• HALO game
• WII console
• LOGITECH peripheral
• service mark is a mark for a service.
• STEAM online services
• BIOWARE development services.
• trade dress is the total appearance of the
  product or its packaging. Sometimes (as in the
  case of the XBOX 360 console or SONY PS3
  controller), the trade dress of the product is
  also a trademark.
• trade name is the name of a business. Used
  correctly, a trade name also serves as a
  trademark or service mark
• BLIZZARD is a company and trademark

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Types of Trademarks

• Common words used arbitrarily (BLIZZARD)
• Invented words (ATARI or WII)
• Personal names (SID MEIERS PIRATES)
• Alphanumeric combinations (PS3)
• Logos (ROCKSTAR)
• Packaging (XBOX peripheral blister/card)
• Colors/Color Schemes (XBOX white/green packaging)
• Product shapes (XBOX 360 console, PS3 controller)

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Choosing a Brand

• Coined - invented word (EIDOS games).
• Arbitrary - common word with no ordinary meaning
  when applied to the goods (APPLE computers,
  BLIZZARD games).
• Suggestive word that suggests an attribute of
  the product, without describing the product
  itself (PLAYSTATION consoles).
• Descriptive word that merely identifies or
  refers to an attribute of the product. Laudatory
  terms (BEST BUY for retail store) personal names
  (SID MEIER) and geographic terms (BETHESDA
  SOFTWORKS) are also descriptive.
• Generic - A generic term is not a trademark at
  all but simply the name of the product itself
  (GAME or MMO).

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Distinctive Brands

• Coined
• Arbitrary
• Suggestive
• instant protection
• easier enforcement
• swifter registration
• long-term branding benefits

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Less Distinctive Brands

• Suggestive/Descriptive
• need exclusive use for secondary meaning
• rely on design elements
• exist in crowded field

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Advantages In Selecting A Distinctive Trademark

• Instant rights - In the U.S., a coined,
  arbitrary, or suggestive mark is valid as soon as
  goods bearing the mark are sold.
• Ease of registration - Descriptive marks are much
  more difficult to register.
• Broader protection - Descriptive marks usually
  exist in a crowded field of similar marks. A
  distinctive mark is easier to defend against
  infringers.
• Long-term brand building - Descriptive marks may
  seem attractive because they communicate the
  nature of the goods or services to customers, but
  distinctive marks - because they are unique and
  more easily enforced - tend to be better
  investments in the long run.

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Brands from Games

• Titles
• Characters
• Symbols

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More Brands from Games

• Enemies
• Settings
• Weapons

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Trademark Clearance Process

• Knock-Out Search - Review USPTO online records
  and other Internet resources for identical or
  near identical marks
• Full U.S. Search - Broader review of U.S. federal
  and state trademark registries, 50
  Secretary-of-State databases, trade directories,
  Dun Bradstreet, the Internet, and other
  resources
• Follow-up Investigation Confirm the use and
  ownership of problem marks found in the search.
  Is there really a conflict?

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Limitations of Trademark Searches

• No Search is 100 Complete - Unregistered
  trademarks may not appear in trademark
  registries, industry directories, online
  databases, or the Internet. Foreign trademark
  records may be incomplete or incorrect.
• Assigning Risk is Tough Call - Reasonable people
  may disagree as to whether two marks are in
  conflict. Senior trademark owner may be
  unexpectedly aggressive. Judges and juries are
  often unpredictable.
• No Guarantees Trademark clearance always has a
  degree of risk.

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Registered Unregistered Trademarks

• In the United States, trademark rights come from
  use, not registration.
• Unregistered or common-law marks may be valid
  and enforceable.
• The first person to use a trademark generally
  gets rights to it.
• Important exception federal intent-to-use
  filings can set up priority before use.
• In other countries, trademark rights flow mainly
  from registration. Unregistered marks are
  usually protected only if they are well-known.

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Why Register Trademarks in the U.S.?

• easier to prove that the trademark is valid.
• evidence of ownership and of nationwide rights.
• establishes the exclusive right to use the mark
  for the goods or services listed in the
  registration.

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Trademark Registration Process

• Apply to USPTO, usually electronically
• USPTO Examiner reviews the application for
  distinctiveness and compares mark to prior
  registrations
• USPTO publishes mark for opposition by anyone who
  believes he will be damaged by registration
• If no successful opposition, the mark may be
  registered. Applicant must show use of the mark
  before the registration can issue
• Registration does not guarantee rights others
  may still petition to cancel

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Trademark Use Guidelines

• Trademarks are adjectives, not nouns. XBOX 360
  gaming console is better than XBOX 360.
• Trademarks should not be used possessively.
  The gaming power of the PLAYSTATION 3 console
  is better than The PLAYSTATION 3s gaming
  power.
• Use marks exactly as registered. WORLD OF
  WARCRAFT not WORLD OF WAR CRAFT or WARCRAFT
  WORLD
• Trademarks should be distinguished. Use capital
  letters, italics, bold type or the like to
  distinguish a trademark from other text.

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Dont Let TrademarksBecome Generic

• ASPIRIN generic for acetylsalicylic acid.
• THERMOS generic for vacuum bottles.
• CELLOPHANE generic for transparent cellulose
  film.
• ESCALATOR generic for moving stairways.
• LINOLEUM generic for plastic flooring

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Proper Trademark Attribution

• only for trademarks federally registered in the
  U.S.
• TM for unregistered trademarks
• SM for unregistered service marks

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Trademark Infringement

• You must show
• Priority
• Likelihood of Confusion, based on
• Strength of Your Mark
• Similarity of the Marks
• Similarity of the Goods
• Same Channels of Trade
• Intent
• Actual Confusion

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Trademark Infringement Remedies

• Injunction
• Profits
• Damages
• Destruction Order
• Attorneys Fees

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CANADIAN TRADEMARK LAW DIFFERENCES

• Trademark laws differ by country
• In Canada
• - No supplemental register.
• - No service marks.
• - 15 year renewable registration period.
• - No proof of use necessary for registration.
• - Single federal registration system.

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FINAL THOUGHTS

• Licensing and Building a Successful Brand
• License permission to use a trademark not your
  own under certain agreed terms.
• Examples of the power of licensed trademarks to
  enhance videogame brands
• EA and John Madden.
• SCRABBLE for FACEBOOK v. LEXULOUS.

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FINAL THOUGHTS

• Identify possible brands in the creative process
• Develop marketing strategies to fully exploit
  those brands 
• Identifying,managing and policing trademarks
  secures your brand strategy

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Questions?
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Thanks for your attention.

• J. Michael Monahan
• Pattishall, McAuliffe, Newbury,Hilliard
  Geraldson LLP
• Dr. Sunny Handa
• Blake, Cassels Graydon LLP