How to Protect Board Games with Copyrights, Patents and Trademarks

emily mini profile pic By Emily

Designing your own board game is fun. It takes a lot of creative work and you want to protect it. You can protect your board game with copyrights, patents and trademarks.

Are board games copyrighted or patented? Many board games are protected by copyright and patents. Copyright can protect the text and images used in a board game such as the rules and the board design. Patents protect how the mechanics of the game interact with the components.


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mad scientist university lawyers, dice, bootleg media and bureaucracy cards
Lawyers, dice, bootleg media and bureaucracy cards from Mad Scientist University

You may have seen a cool feature in a board game that you’d like to use and you want to know if you can. This article may help you to figure out if you can use it.

If you are a board game designer you may want to know how you can protect your ideas and if it’s even worth registering them in the first place.

I am not a lawyer and this article does not replace legal advice.

This article is as a general introduction to board games, copyright, patents and trademarks. If you want to copyright, patent or trademark your game seek legal advice from a professional.

What is the difference between a copyright, patent and a trademark?

Copyrights, patents and trademarks protect a person or company’s ideas and designs being used by others without permission.

A design or idea becomes ‘Intellectual Property’ in law when it is protected by copyright, patent or trademark.

Copyrights, patents and trademarks each protect different things.

Copyright

Copyright began as a way for authors to protect books. Since then it has expanded to cover any original works like published text, music, art, photographs, movies, software and architecture.

Patent

A patent protects things that can be made or used. The invention must be new and not a modification to something which already exists.

Trademark

A trademark is used to protect a symbol or words that a company uses to represent themselves or their product. It’s usually used for company brand logos and names.

Board Game Copyright

Are board games copyrighted?

As soon a board game is created as a physical item in the US or the UK it is protected under copyright. However, registering for formal copyright protection in the US does provide additional protection.

What does a board game copyright protect?

Copyright for board games can be used to protect all the artwork for the game. That means the design of the board, the cards and any illustrations in the rule book. It can also protect the design of custom components like miniatures.

The text in the rules is also protected because it is a piece of original written work. If there is enough text on the cards, that may also be protected by copyright.

Copyright can also protect any music, video and audio that’s part of the board game. For example, the soundtrack for Mysterium by Libellud.

What does copyright not protect?

Copyright does not protect the idea or mechanics for the board game.

Copyright does not stop another person from creating a board game with the same theme and mechanics as yours. But it does prevent them from copying all your artwork and text.

It also doesn’t protect the title of your board game, its names and slogans or any generally familiar symbols or designs.

The bureaucracy card from Mad Scientist University
The bureaucracy card from Mad Scientist University

How to copyright a board game in the US

In the US, copyright is given to a board game as soon as you create the ‘fixed’ version of the board game components and the rules. ‘Fixed’ meaning that they can be reproduced for more than a short time.

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If you wanted to take file a lawsuit against someone for infringing your copyright, you would first need to register your board games copyright.

Publishing the copyright symbol © on the rules and the board along with the name of the copyright owner and the year it was created, does not act as a substitute for filing for copyright registration.

To file registration for copyright:

  1. Go to the Copyright Office registration webpage
  2. Complete your application online or on paper. Include copies of the works you want to protect
  3. Pay the non-refundable filing fee of $35, $55 or $85 (depending on your application)
  4. Give the Copyright Office copies of the board game you want to register for them to keep.
  5. Hope that your application is approved and you receive a certificate of copyright registration!

How to copyright a board game in the UK

In the UK, copyright is given automatically as soon as you create the board game components and the rules.

You do not need to apply to register your board game for copyright in the UK. There is no copyright registration body in the UK.

It’s common practice to publish the © symbol on the rules and the board along with the name of the copyright owner and the year it was created. This clearly shows everyone that the board game is protected under copyright.

Find out more about UK copyright on the .GOV.UK website.

How much does it cost to copyright a board game?

In the US, copyright is given automatically and for free to any original works of authorship when they are in fixed form.

But to register the copyright for your board game to gain additional rights (such as filing a lawsuit against someone for using your work without permission) it costs $35, $55 or $85 (depending on your application).

In the UK, copyright is given automatically and for free to any applicable created works as soon as they are made. This includes the right to take legal action against someone for using your work.

How long does copyright last for?

Copyright usually lasts until 70 years after the author has passed away in the US and the UK. In other countries like Canada, copyright lasts for 50 years afterwards.

The duration can vary depending on the type of work protected by the copyright. For example, in the UK, photographs have a shorter copyright duration than literary works.

If a board game is copyright protected in one country is it protected internationally?

Not necessarily. International copyright does not exist. Whether your board game is protected or not depends on the laws of each country.

The World Intellectual Property Organization was created to protect authors and their works around the world.

The WIPO is responsible for maintaining the Berne Convention. It is an international intellectual property treaty where countries agree to honour copyrights issued in other countries. You can read more about the Berne Convention on the WIPO website.

The only way to know for sure if your board game would be protected in a particular country is to contact an intellectual property professional.

Is poor man’s copyright a valid form of copyright?

In the UK, because there is no official body for registering copyright to prove ownership and date of creation, something called ‘poor man’s copyright’ came about.

Poor man’s copyright is where a person sends a copy of their idea to themselves using registered post and leaves the envelope unopened. The intention is that the postmark proves how long the idea has been in their possession.

If a person then finds someone else using their idea, they will then plan to use their postmarked item to prove that they had the idea first.

A postmarked package does not prove that the sender was the original creator. An envelope can easily be opened and resealed and a stamp can be forged so poor man’s copyright is unlikely to hold up in court.

In the UK, some ways to try and prove you originally created the work and when you created it are to deposit a copy of your work with a bank, file it with a solicitor or register it with an unofficial third-party copyright registration service.

However, there is no legal guarantee that these will prove the date you originally created the work or that you are the original creator.

In the US, there is no provision for poor man’s copyright so it provides no protection.

Board Game Patents

Are board games patentable?

Patents can be given to board games. A famous example is the patent for Monopoly in 1935. You can view the patent for Monopoly on the Google patents archive.

A more modern example would be the patent for the collectable card game Magic: The Gathering.

To be given a patent, a board game needs to meet the three requirements of patents.

  1. New
  2. Useful
  3. Non-obvious

That means your board game can’t be an extension or modification to an existing board game or a combination of board games.

Are board game mechanics patentable?

Some board game mechanics are patented but only if they are new, useful and non-obvious. They also usually need to relate to a custom component.

For example, drawing a card and playing a card is not patentable. But the playmat of Twister and the mechanics used to interact with it is. See the patent for Twister on Google patents.

Getting a patent for a board game is difficult now

Meeting the three requirements for a patent is a tough thing to do now that thousands of new board games released each year!

There was also an important ruling in the United States Supreme Court in 2014. It set the precedent that organizing an abstract idea into a set of rules is not patentable. The case was regarding software, but the same can be said of board game mechanics.

What does a board game patent protect?

A board game patent protects someone else from making and selling your board game without your permission and without giving you any money. The patent protects any unique inventions that are part of the board game and how they are used.

For example, in Twister, the patent protected the printed playmat and it being used as per the rules of the game.

A patent only applies in the country which issued it. So if you want to patent something in the US and the UK, you need to apply separately to each country.

Mad Scientist University Dice card
The dice card from Mad Scientist University

How to patent a board game in the US

Applying for a patent in the US takes about 2 years. You apply through the United States Patent and Trademark Office (USPTO).

  1. Search through existing patents and check that there are no similar board games to yours.
  2. Complete your application and pay the fee. The USPTO has special guidelines on how to fill in your application including how to complete the specification, your claims, and the format of your drawings and photographs. You can see the patent guidance on the USPTO website.
  3. You will be notified if your application is not considered complete. You’ll get notice of what you need to add.
  4. Work with the examiner assigned to review your application. They will tell you whether your patent application meets the requirements or not. They may ask for additional information. You need to reply in the time set by the examiner or your application will be abandoned.
  5. If your application is denied twice by your examiner you have the right to appeal their decision to the Patent Trial and Appeal Board.
  6. If everything is approved. You will receive your patent!

For more information and details on the patent application process with the USPTO, see their Patent Process Overview article.

How to patent a board game in the UK

Applying for a patent in the UK usually takes 5 years. During that time you can’t make your board game public. If you do, you may not be able to patent it.

You apply through the Intellectual Property Office (IPO). To apply for a patent in the UK:

  1. Search other patents to check that your board game is new and unique.
  2. Complete your application. Include a clear description of how your game works and how it could be made. Diagrams, technical drawings and a copy of the rules can help you to explain how your game works. Clearly state the features that you want to protect. Provide a clear abstract of the important technical aspects.
  3. File your application and wait about 6 months for a search report to come back. That will tell you if there are other similar patents and if your board game is new and inventive. You can then decide if you want to carry on with your application.
  4. If your application passes the search, 18 months later it is published.
  5. Within 6 months of the published date, you apply for a Substantive Examination. This checks your entire application to see if a patent could be granted. This can happen years after you apply for the examination.
  6. Reply to the IPOs Substantive Examination comments.
  7. Your patent is granted or refused.

Phew! That is a pretty long, drawn-out process. For more information on applying for patents in the UK, see the patents information on the .GOV.UK website.

I wouldn’t be prepared to wait 5 years for a patent which may or may not be granted. While I’m sitting and waiting for a patent, someone may just release a similar game and beat me to market!

Consider a design patent for board game components

Because there are so many board games available now each with similar mechanics it is very difficult to receive a patent for a board game.

Instead of a full patent, you could apply for a design patent to protect certain design elements of your board game. For example, custom player miniatures could be under a design patent. Just like a full patent, the item you want to protect must be new and non-obvious.

In the US, a design patent lasts for 15 years. It doesn’t need to be renewed during those 15 years.

In the UK, a design patent is called a Registered Design. It lasts for 25 years and needs to be renewed every 5 years during that time.

How much does it cost to apply for a patent?

In the US, the amount you pay for a patent depends on the type of patent you are filing. The more complicated the invention, the higher the costs.

A patent can cost about $900 if you do it yourself without legal help. This includes the filing fee, search fee and review fee. With legal help, it can cost $7000+ to file a patent for a board game.

In the UK, it costs about £4,000 to apply for a patent.

If you pay someone to help you prepare the drawings, complete searches before you file your application or get advice from a professional, your costs will increase.

Because you need to apply for a patent in every country that you want patent protection, it can be very expensive and time-consuming.

How long does a patent last for?

A patent issued in the US or the UK lasts for 20 years.

Board Game Trademarks

Are board games trademarked?

The logo, title and slogan of a board game can be protected by trademark.

What does a board game trademark protect?

You don’t own the words, logo or brand as such. What you do have is protection against someone else using them to claim they made the board game. A trademark is a way for you to show your customers and fans that the board game comes from you.

For example, Hasbro can’t stop people using the word ‘monopoly’ to mean one business controlling the supply or trade of a particular product or service. But Hasbro can seek litigation against anyone who uses the Monopoly brand on any products or services without their permission.

The Bootleg Media card from Mad Scientist University
The bootleg media card from Mad Scientist University

How to trademark a board game in the US

To apply for a trademark in the US, you apply to the United States Patents and Trademark Office. It takes 6 months to 1 year for an application to be approved.

In your application, you need to provide evidence of already using, or wanting to use the trademark on something commercial, like a published board game.

You can’t just apply for a trademark to protect something that you may or may not produce in the future.

Otherwise, the USPTO would become a storage place for thousands of trademarks that aren’t even in use!

To apply for a trademark with the USPTO:

  1. Check that your trademark is allowed to be registered. There must be no other trademark similar to yours used in the hobby games market.
  2. Identify which products or services you want your trademark to apply to.
  3. Complete your application. Include copies of your trademark, the goods and services it will be applied to and either evidence of commercial use, or evidence of intent to use in the near future. For example, if you want to use the trademark on a game that is not yet published you might submit the designs and business plan as evidence.
  4. Work with the USPTO appointed attorney who is reviewing your application. They may ask for additional information. Reply within the time frame they give you or your application will be abandoned.  
  5. Receive a decision on your application. If it is accepted, your trademark will be published in the Official Gazette and the public has 30 days to object to your trademark application or extend the time allowed to oppose it. If someone objects, the Trademark Trial and Appeal Board consider the objection.
  6. If no-one objects, you get a notice of allowance to use the trademark. It’s not registered though, not yet.
  7. During the next 6 months use the trademark in commerce and submit a Statement of Use. This will be reviewed. If it meets the requirements…
  8. You get your registered trademark certificate!

For more information on the trademark application process, see the USPTO website.

How to apply for a trademark in the UK

To apply for a trademark in the UK, you apply to the Intellectual Property Office. The application takes around 4 months if there are no objections.

To register for a trademark in the UK:

  1. Search the trademark database to see if anyone else has registered a similar trademark in the hobby games market.
  2. Apply with details and examples of what you want to register. For example, your logo and slogan. Include the class or classes of goods and services you want to use it in. For example, board games and hobby games.
  3. Within 20 days you’ll receive an examination report on your application. If there are any problems you have 2 months to resolve them.
  4. If there are no objections to your trademark, it is published in the Trade Marks Journal for 2 months. Anyone can object to your application during that time. If someone objects, you can: withdraw your application, discuss it with the objecting party directly or defend your application.
  5. If there are no objections or the objections are resolved you get your certificate of registration!

For more information applying for a trademark in the UK see the trademark information on the .GOV.UK website.

How much does it cost to register a trademark for a board game?

In the US, it costs between $225-$400 to file for a trademark if you complete the application yourself. An online legal service is about $500, a lawyer may charge $1,500-$2,000.

In the UK it costs £170 to apply for a trademark online with an extra £50 cost for each additional class you want to register use for. If you want to apply on paper by post it costs £200 and £50 for each additional class.

How long does a trademark last for?

US

A trademark issued by the USPTO lasts for as long as the trademark is being used. It doesn’t have a set expiry date.

However, just using the trademark is not enough to maintain the registration. 5 years after the trademark has been granted, you need to send photo proof that the trademark is still in use. You need to do this again in the 10th year and every 10 years after that.

UK

A trademark granted by the UK Intellectual Property Office lasts for 10 years. After 10 years you must apply to renew your trademark.

Is a trademark issue in one country valid in other countries?

A trademark issued in one country is not valid internationally. You’d need to register your trademark in each country that you want to use it.

Do you have any protection without registering a trademark?

In the US and the UK even if you have not registered your trademark, if someone tries to pass your board game off as their own using your logo, then you could have some rights under common law.

This right is under the law of ‘passing off’.

You’d have to take the perpetrator to court, which would be expensive. You’d only have a case if you can prove:

  • The mark is yours
  • You already had an established reputation with the mark
  • Your reputation has been affected because of it
  • People had been deceived and led to believe the other party was representing you

How to enforce a copyright, patent or trademark?

With all forms of intellectual property – copyright, patent, design patent or trademark – it is up to you to defend them.

The official organizations your register your intellectual property with are issuers of registration certificates, not legal prosecutors.

If you see someone else using your work without your permission, it is up to you how you deal with it. There are four common ways. Each one involves progressively more time and cost.

1. Negotiation

If you notice that someone has used your intellectual property in their board game, then you can contact them. If you contact someone using your property without your permission and demonstrate to them that you are the owner, that may be enough to stop them.

2. Mediation

If negotiating fails, you can seek a mediator to help you to meet with the other party and help you both to come to an agreement.

The Intellectual Property Office in the UK offers a mediation service. The other party would need to agree to mediation and pay costs too.

3. Arbitration

This is where you contract a professional third party that fully understands the law to listen to both sides and decide on the solution. The costs for arbitration will vary depending on which company you use.

4. Legal action

The most expensive and time-consuming option. This is where you file a lawsuit against the person or company in breach of the copyright. You will need to pay the legal fees yourself.

The lawyers card from Mad Scientist University
The lawyers card from Mad Scientist University

Non-disclosure agreements with publishers

If you want to get your board game published with a board game publisher, they may take care of the intellectual property protection for your board game. This will probably mean they own the intellectual property rights to it, but you will receive compensation as per your contract.

If your board game idea isn’t public knowledge and isn’t protected, then how can you show it to publishers without them taking your idea?

Ask them to sign a non-disclosure agreement before discussing your board game with them. It is a contract between you and them. It means that neither of you will share confidential information that you share with each other as part of doing business together.

For example, they won’t share your board game ideas, and you won’t share any commercial information about their business.

Are copyrights, patents and trademarks for board games worth it?

That’s up to you. If you think it’s worth it, then it’s worth it.

The issue I have with intellectual property is that it is only worth something if you are prepared to take legal action if needed. That can get really expensive really quickly.

Board games don’t make that much profit unless they make it big as I found out as part of my research into how much board game designers earn. And if your board game does make it big, you’ll likely need to work with a publisher to take it to mass market anyway. In which case, they will take care of any legal protection they think is necessary.

But that’s just my opinion. I am not a lawyer and this is not legal advice!

Seek help from a lawyer if you want to protect your board game with copyright, patents and trademarks.

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Emily
Hi, I’m Emily, the tabletop gamer behind My Kind of Meeple. If this article helped you, I’d be honoured if you’d say, “Thanks!” with a £3 coffee on Ko-fi.

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