0

Under intellectual property law, is it permissible to create a version of an out-of-print board game that is protected by copyright, but not by patent, by changing its design elements (cards, game pieces, packaging, name, logo, and symbols) while retaining the original game's rules and only writing them in other words, and advertising the game as having the same concept as the original?

Example: The new game is called "FlowerPoly" and is a copycat version of the game "Monopoly". In FlowerPoly, instead of estates and streets, there are lands and farms, and instead of buying a hotel or a house, the player buys a Nature Reserve. The currency used in the game is Nature-points instead of dollar bills. Despite these changes, the gameplay remains exactly the same and players who have played both games would recognize the similarities immediately.

Note: The original game does not hold a patent. I understand that copyright protection applies only to the design and names, not the mechanics, so using a different design should be acceptable. However, I seek clarification on whether claiming the game is similar to the original would infringe on the original game's intellectual property. (Maybe Trademark? because i am connecting it to the original game)

Edit: To clarify my main question is whether claiming the copycat is similar to the original would infringe on the original game's intellectual property.

0

2 Answers 2

4

IP in Game Rules

Game rules and other game "mechanics" are not protected by copyright. They are considered to be "ideas, methods or procedures". 17 USC 102(b) provides that:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

If the wording of the rules is not the same, and no art or visual design was copied or imitated, the fact that the gameplay is the same does not afford any copyright claim.

Claims of Similarity

A comment from the OP says:

I seek clarification on whether claiming the game is similar to the original would infringe on the original game's intellectual property.

If the maker or distributor of the new game states that it is similar to the old game, something like "This is a Flower version of Monopoly." would that be any sort of IP infringement?

Such a statement would in no way infringe any copyright. Would it infringe the trademark rights on the mark "Monopoly". That is harder to say.

The key question in a trademark case is whether the use of a mark, or of words or images that refer to or suggest a mark, would cause reasonable people to falsely think that the new product or service is endorsed, sponsored, or approved by the makers of the old, or to falsely believe that the new product or service comes from the same source as the old one, that is, is made by the same firm or the same people. Whether a particular statement of similarity would do that is a question of fact, and would depend on the details of the statement and the overall presentation of the new game. But a disclaimer can and often does avoid a potential trademark infringement issue. A statement something like:

FlowerPoly is not endorsed, approved, or sponsored by Hasbro, the makers of Monopoly, and holders of the trademark on that name. FlowerPoly was created by a completely different group of people. One should not rely on the reputation of Monopoly when deciding to purchase or play FlowerPoly.

It would be wise to have the exact details of any statement of similarity, of any disclaimer, and of the name itself, reviewed by a lawyer with experience specifically in trademark law.

In general, merely suggesting a similarity is not trademark infringement. Specifically, comparative advertising is not infringement. For example, a new drink could advertise that "NewCola is better than Cokle." That would not be an infringement of the trademark "Coke", because it makes clear that the products are different, and come from different sources.

3
  • Not what i asked... As i mentioned in my question. I seek clarification on whether claiming the game is similar to the original would infringe on the original game's intellectual property. (Maybe Trademark? because i am connecting it to the original game)
    – Smith
    Feb 8, 2023 at 8:52
  • @Smith I have added a section to my answer. I hope it better addressees your issue now. Feb 8, 2023 at 15:35
  • thank you indeed it helps.
    – Smith
    Feb 8, 2023 at 15:39
2

David already quoted why copying a game's rules non-verbatim is indeed allowed, if you manage to keep out all branded and trademarked language out of your version.

However, the term "FlowerPoly" is not a word on it's own and clearly a stab at the original "Monopoly". Whether that is a problem, you could probably find out in a costly lawsuit where a judge will rule over the closeness of two words, and the meaning for the brand or trademark. Something that could probably swing in either direction, but certainly sink years of time and tons of money.

Or you could just pick a name that has nothing to do with Monopoly, like "Flower Market" or "Nature Reserves" that is perfectly fine because it has nothing to do with the brand and/or trademark name.

8
  • Ty @nvoigt . In a case that i name the game "Flower Market", can i claim in ads that the game is similar to "Monopoly" or would it infringe on the original game's intellectual property. (Maybe Trademark? because i am connecting it to the original game)
    – Smith
    Feb 8, 2023 at 11:17
  • You cannot use their name. You could describe it without explicitely using their name. Off brand Legos for example may use the wording "compatible to the market leader" or "compatible to bricks from Denmark". But you cannot say "compatible with Lego" without their permission. So if you find a way to describe Monopoly without saying "Monopoly", yes, that would work. If you had good lawyers on retainer, you could try sneaking in the english word monopoly into a sentence. But that is for cheeky corporations with lawyer money to burn. I would rather not try it, if not getting sued is the goal.
    – nvoigt
    Feb 8, 2023 at 20:34
  • @nvoigt Not so See law.stackexchange.com/questions/43484/… &law.stackexchange.com/questions/17548/… Comparative ads are specifically allowed, & compatibility advertising using a trademark. "This software compatible with Windows 10" "This cable compatible with Apple iPhone" needs no permission. It is a form of Nominative use. See law.stackexchange.com/questions/12056/… Feb 9, 2023 at 15:34
  • @DavidSiegel True, but for example if the OP used "Monopoly" as a tag in an app store to grab all those who search for Monopoly to find the product as well, I think that's a little blurry. Even if it doesn't claim to be Monopoly, it is still gaining a monetary benefit from using it's name. Lego competitors for example go to great length to not even mention the term Lego anywhere, simply because they don't have the money to fight Lego. So is it legal? Theoretically. Is it a legal battle a guy with an app in the app store can afford to fight to find out? Probably not.
    – nvoigt
    Feb 9, 2023 at 19:56
  • @nvoigt Nominative use of a trademark is often fairly open and shut, and in many cases will not require large outlays even if the opponent is a large and powerful company. In software and electronics for example "Compatible;e with X" is used often with no need for permission. Feb 9, 2023 at 20:04

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .