More Than Just a Game
Video gamers represent a great opportunity for brands to reach new, young demographics with eclectic tastes. They also raise new issues for trademark licensing, as James Nurton discovers.
There are some 3.24 billion video gamers worldwide, almost half of them in Asia, and they represent a great opportunity for brands to reach new, young demographics with eclectic tastes. They also raise new issues for trademark licensing.
In yesterday’s Capsule Keynote Panel: Precursor to the Metaverse? Best Practices for In-Game Trademark Licensing, speakers discussed the key points for brands to consider when working with game producers. They also asked what lessons and guidance there are for licensing brands in the metaverse.
The panel was moderated by Patrick Low, Principal IP Counsel, Tencent (Singapore), who noted that for many gamers their first encounter with brands may be digital rather than real. “The digital experiences are becoming increasingly accessible to the young demographic,” he said.
“[B]rands have to be ready to relinquish some control, but that risks potential dilution of the brand image.”
- Pin-Ping Oh | Bird & Bird ATMD LLP (Singapore)
Miley Chen is Senior Marketing Manager for PUBG MOBILE (China), a mobile battle royale game that has collaborated with characters such as Spider-Man and Jujutsu Kaisen, brands such as MOUNTAIN DEW and BUGATTI, celebrities including Lionel Messi, and hosted a virtual in-game concert by Korean group Blackpink.
“Today brands have embraced online marketing,” said Ms. Chen, adding: “It offers a new dimension to digital marketing with a much more immersive and interactive experience.” She stressed the importance of brands being both entertaining and useful: “We work really closely with brand partners to make sure that IP assets are well represented in the way brands would like them to be featured.”
Game for Peace, a tactical comparative game and one of the most popular in China, has launched successful collaborations with brands such as Airbus, Lamborghini, Lotus, Maserati, and Tesla. “There are so many possibilities to integrate trademarks into the videogame platform. The nature of games makes them an excellent platform for users,” said Joey Zhou, Senior Business & Brand Manager at Game for Peace (China). For example, gamers can experience driving digital cars even before the cars are available in the real market, while Yves Saint Laurent has offered exclusive physical products to Game for Peace players.
During the session Mr. Zhou showed a video of a LOTUS EVIJA car on a flying track in the game, explaining: “This collaboration is really exciting, as it shows how brands can make use of video games to represent themselves in the best possible way.”
“Empathy and creativity will lead to a successful long-term partnership.”
- Joey Zhou | Peace (China)
Pin-Ping Oh, Partner, Bird & Bird ATMD LLP (Singapore) highlighted four areas that brand owners should focus on when collaborating with games.
First, she raised the issue of non-fungible tokens (NFTs), saying: “If I’m a brand with a mark for real-world goods, am I protected for virtual goods as well? Not necessarily.” For example, guidelines from the Korean IP Office state that virtual goods will be deemed dissimilar to real world counterparts until a court precedent establishes otherwise.
Ms. Oh said while there is no court precedent on this question yet, she pointed to the pending case Roblox Corporation v. Wowwee Group in the U.S. District Court for the Northern District of California. “This decision will give us some guidance as to how courts will approach similarities and differences between real-world and virtual goods,” she said.
In the meantime, brand owners should secure trademark registrations to prevent third parties and as a basis for take-down efforts but be aware that marks are vulnerable to non-use attacks. They should also monitor NFTs and other virtual platforms for infringement and take prompt action.
A second issue is artificial intelligence (AI) and, in particular, whether there is copyright protection for AI-generated works. In a recent decision concerning illustrations for a comic book (Zarya of the Dawn), the U.S. Copyright Office decided that there is no copyright protection unless a human author can be identified. This is in line with case law in Singapore and the UK, said Ms. Oh. Two important questions to consider with generative AI are: Where do the datasets come from? And what representations and warranties do the tools provide?
The third issue is user-generated content, as users come to expect to be able to co-create with the brands. “This means brands have to be ready to relinquish some control, but that risks potential dilution of the brand image,” said Ms. Oh. It is vital therefore to establish brand guidelines, define who owns the IP, and identify who’s behind the avatar.
Fourth, the future of gaming is augmented reality, and it raises several trademark questions, such as what happens when a trademark is superimposed on something else or used as a trigger to prompt a competitor’s mark to appear.
With collaborations between brands and games set to grow, Mr. Low said all brand owners should be asking questions such as: “Should I update my trademark strategy to global plus trademark strategy? Should we extend searches to the metaverse, and if so, which metaverse?” Many aspects of licensing in games or in the metaverse may be different from the real world, such as the toleration of changes or damage to a brand and whether use can continue after termination of a license (for example, if users have essentially bought rights to play with the brand).
The potential of collaborations for both brands and game producers is enormous, said Ms. Chen: “The most important thing is keeping a sincere mindset and respect each other’s perspectives. It’s a learning process for both games and brands.
Empathy and creativity will lead to a successful long-term partnership.” Mr. Zhou added: “Our mission is to get a great experience and great content for users. The most important thing for a partnership is to understand and respect each other’s values and positions.”
