Gaming

Henry Alves Branche EN

Gaming

Below you find information about data protection, trademark law, copyright law, competition law and youth protection in the gaming industry.


Data protection in Gaming industry

Data protection law is designed to protect personal and person-related data. Furthermore, data protection law lays out the rules for businesses that are entrusted with handling such data.

Processing – i.e. collection, storage, usage and possibly also forwarding – , of person-related data is subject to extensive obligations, starting with the obligation to duly notify the affected person of these actions. Notification usually occurs by means of a privacy statement, which is only effective if the affected person has taken notice of it.

The aforementioned statement is required for websites as well as computer games and gaming apps. The difference lies within the requirements such a privacy statement must fulfil, depending on the medium employed. This is what makes data protection law such a vast field in the area of computer games, console games and mobile phone games. The requirements depend on the the respective data being collected and processed during (if applicable) download, installation and/or gaming itself.

Especially in the area of so-called analytical tools the requirements for a valid privacy statement further depend on who is collecting the respective data and where it is being stored. For example, data can be processed by a third – usually external – party (so-called contract data processing). In this case, the principal is required to meet extensive duties of examination and supervision as well as documentation hereof.

Trademark law in Gaming industry

When it comes to protecting your own products, the value of trademark law to the gaming industry must not to be underestimated. Especially with regard to marketing and merchandising, it is recommendable to have game titles protected as trademarks. This can prevent others from taking advantage of your success as “free riders”, e.g. by introducing unlicensed merchandise articles to the market. It is recommendable not to limit trademark protection to the gaming components of a game, i.e. software and computer-related products. We rather advise extending the trademark’s protection also to everyday products, such as clothing, toys etc., which are significant economic aspects of merchandising.

Moreover, trademark law is very relevant for aspects concerning the rights to a domain. Trademark rights don’t necessarily bring along the right to use a domain bearing the same name. However, if you are entitled to the trademark regarding a name or sign, you may prohibit others from using the corresponding domain, if the use didn’t occur prior to your trademark registration.
The mere possibility of licensing not only the exploitation rights regarding the title, but also the trademark itself, already gives trademarks a significant economic value.

Finally, in the area of games development and publishing, the role of trademark law is not limited to the protection of own rights. Selecting a game title can easily constitute an infringement of existing trademark rights causing not only the threat of being confronted with a cease and desist warning – and the costs arising from it. Should the exploitation of the title actually constitute an infringement, the trademark owner can prohibit further exploitation. This right of prohibition has especially grave effects when a title has already been produced and placed on the market. It is therefore highly recommended to conduct thorough research on the selected game title’s infringement potential already during the development phase.
If you are seeking to register a trademark for your products and/or services we will – in close cooperation with you – create a list of the goods and/or services relevant for your trademark, find out whether your desired trademark can be protected and assess potential conflicts with already existing trademarks. We will register your trademark with the German Patent and Trademark Office (DPMA) as well as the European Union Intellectual Property Office (EUIPO) and, if necessary, extend protection of your trademark to selected countries throughout the world by undergoing international registration procedure according to the World Intellecutal Property Organization (WIPO).

After your trademark has been successfully registered we will survey the market in order to notice and react to infringements more quickly. In case of such infringements, we will enforce your claims – whether outside of court, by issuing cease and desist warnings, or in court, by filing injunctions and law suits.

Copyright law in Gaming industry

Whether you are looking at consoles, computers or mobile phones/tablets – the games market is booming. However, copyright law is gaining increased significance in the “digital age” and its importance to the gaming industry should not be underestimated.

The importance of copyright law in this field results from the increase in technological possibilities of copying or “trading” video games, thus violating copyright law. Pirated copies are especially damaging to the beneficial owner, as “internet pirates” usually download games for free. This directly affects sales turnover.

Computer-, console-, and app-games – as all types of games – are protected by copyright law. Copyright protection is usually not restricted to the “computer program” itself. The user’s manual, rules of the game, graphic implementation, characters/avatars, the spoken and/or written texts as well as the music can all be included into the protection under copyright law. Whether these individual components or related parts of the game are actually protected under copyright law must be specifically assessed in each case.

If the game is under protection, the beneficial owner is authorized to decide on the type and character of exploitation of the game. His rights especially include the right of reproduction pursuant to Sec. 16 of the Copyright Act [Urheberrechtsgesetz], the right of distribution under Sec. 17 of the Copyright Act as well as the right of exhibition according to Sec. 18 of the Copyright Act.

Practically speaking, most copyright infringements occur in the context of file-sharing. File-sharing platforms are used by “internet pirates and groups” such as Skidrow, Codex and xatab to distribute pirated copies. Since file-sharing platforms are designed in a decentralized manner, by consequence each user who downloads a pirated copy commits an infringement of the protected work, because, according to the “give and take” principle, the platform user in turn uploads the downloaded file for other users.

When a copyright infringement occurs and the perpetrator has been identified, he can be sued for cessation and damages pursuant to Sec. 97 of the Copyright Act. The remedy provided by the law in these cases is the cease and desist warning pursuant to Sec. 97a of the Copyright Act. This is supposed to give the perpetrator the chance of settling the matter by issuing a pre-trial cessation cease-and-desist declaration.

In the area “games and program development” copyright law also plays a major role for employment contracts, as only the person who actually created the work is regarded as its author. When in doubt, this is only the specific employee who “scripted” the computer program. Therefore, it is required that this employee transfer or grant the exploitation rights to his employer. Where this does not happen, the employer is subject to significant risks, as, if doubts arise, it is the employer who carries the burden of proof regarding the ownership of the claimed rights.

Computer games can also receive “double” protection, as the game’s logo may also be protected under trademark law.

We are pleased to offer you our consultation services regarding the above matters. Please do not hesitate to make an appointment with us by telephone or in writing.

Competition in Gaming industry

Competition law aims at combating acts of unfair competition while, at the same time, regulating the law on restriction of competition. NIMROD’s expertise particulalry covers the area of fair trading law, which finds its legislative basis especially in the Unfair Competition Act [Gesetz gegen den unlauteren Wettbewerb]. In this regard competition law determines the rules by which businesses must abide when acting in markets and possible sanctions in case of infringements.

Competition law gives rise to cease and desist warnings based on other areas of law, such as youth protection law. As computer games usually target children and adolescents this aspect is particularly relevant in the gaming industry. Especially with regard to games that are financed by in-app purchasing it is important to avoid the impression that these offers are directly addressed at minors.
According to the jurisprudence of some courts, data protection violations constitute infringements of competition law and can give rise to cease and desist claims.

Cease and desist warning under competition law also loom in other areas. For example, end user license agreements constitute general terms and conditions which are subject to Sec. 305 et seq. of the German Civil Code [Bürgerliches Gesetzbuch]. Therefore, EULAs are also subject to numerous restrictions and vast case-law.

Finally, if you are running your own online shop, you are subject to the far-reaching influence of competition law on e-commerce.
However, competition law can also be of use to you. Competition law protects you when your products or services are copied in a manner which causes customer deception or affects your products or services. This also applies to computer games, especially to those with certain distinguishing characteristics. So, if someone copies the popular game you have spent so much time cultivating, competition law can be decisive where claims under copyright law may not arise.

NIMROD will support you in drafting your license agreements, consult you on advertisement design and actively defend you against cease and desist warnings brought forward by competitors and agencies.

Youth Protection in Gaming industry

In Germany youth protection is provided primarily under the Youth Media State Contract (YMSC) [Jugendmedienstaatsvertrag] and the Protection of Young Persons Act (PYPA) [Jugendschutzgesetz]. The YMSC especially applies to online contents while the PYPA sets the legal framework for contents offered to the youth by offline media (movies, video- and audiotapes, DVDs, CD-ROMs etc.).

Therefore, both codes are of relevance to online gaming retailers, developers and publishers, due to the possible repercussions in case of infringements, which can come either from public authorities or other competitors. Authorities can sanction violations of youth protection law with measures such as a prohibition of distribution and fines of up to 250.000 €.Competitors can seek legal remedies as infringements of youth protection law also constitute acts of unfair competition (see: judgement of the German Federal Supreme Court [Bundesgerichtshof] of 18 October 2007, I ZR 102/05 “ueber18.de”).

The computer games “Manhunt”, “Dead Rising”, “Der Pate – die Don Edition” and “Condemned” e.g. were seized and confiscated, thus preventing their distribution. Whoever continued distributing these games faced the threat of criminal proceedings under Sec. 131 of the German Criminal Code [Strafgesetzbuch]. In this context a judgement of the Higher Regional Court [Oberlandesgericht] of Frankfurt am Main (judgement of 7 August 2014, 6 U 54/14) must be mentioned, in which the court ruled that online computer games retailers must perform a double age verification when games that are prohibited for certain ages are purchased, the first verification taking place during the online purchase process itself, the second one occurring upon delivery by the delivering person.

The YMSC’s applicability is specifically limited to so-called tele-media. Practically speaking, this means especially internet contents. As a rule, the YMSC applies to games that can be played only online, especially browser games. Contents to which the statutory term of tele-media does not apply are generally assigned to their respective data media, thereby subjecting them to the provisions of the PYPA.
 

What does this mean, specifically?

For online contents

Online contents can be deemed generally illegal pursuant to Sec. 4 para. 1 YMSC. Especially in the area of online games situated in a historic context, the display of the swastika can result in illegality of the game. But also the distribution of indexed contents can result in illegality pursuant to Sec. 4 para. 2 YMSC, where a qualified age verification system in accordance with Sec. 4 para. 3 YMSC is not provided.

If a retailer provides so-called “content impairing the development of minors”, he may be forced to take technical or other measures, e.g. broadcasting times restrictions, to ensure that the content is not available to children and adolescents. It seems that a shutdown of the online contents for certain hours could also be such a measure.

 

For data media contents

For data media contents

Pursuant to Sec. 12 para. 1 PYPA data media suitable for distribution and reproduction on a monitor or playing on a monitor, using data media with films or games, shall not be accessible in the public for children and adolescents unless they have been cleared and labelled for the respective age group. In this context accessibility means any behavior which makes the data media contents available to children and adolescents.

This prohibition applies to all types of retail. As a result, online mail order retailers must ensure that children and adolescents are only able to purchase the contents cleared and labelled for their respective age groups.

The age clearance itself is issued for movies by Freiwillige Selbstkontrolle der Filmwirtschaft (FSK) and for computer games by Unterhaltungssoftware Selbstkontrolle (USK), which are self-regulatory bodies for the legally regulated protection of minors. The age clearance is issued according to the following age levels:

fsk

Source: usk.de

It must be noted that under German law only the German labels are of relevance. It is therefore not possible to reimport content rated abroad into the country, e.g. because the rating fees are lower abroad.

NIMROD can especially consult you on the following questions and issues:

• Does a specific content abide by the relevant youth protection legal framework?
• Negotiations with public authorities
• Defense against sanctioning proceedings
• Enforcement of and defense against resulting claims under competition law

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