Not a week goes by, it seems, without someone suggesting putting a playable version of Army Of Zero on the website - either someone wants to play against a computer, or they want to help out by writing a program for us.  Technically, it’s absolutely do-able.  You might remember from an earlier post that we used a computer program during the play-testing, to simulate a lot of games and make sure that the balance works, so it wouldn’t take a lot to adapt that, along with some nice graphics, into something we could put on the website.

Unfortunately, it’s there are other complications, related to the Army Of Zero trademark, and I’ll tell you all about it.  By the way, this all happened about nearly a year ago, and it’s probably worth making the point that we’re not upset about it: it’s just the way the intellectual property world works, and it was ineresting to see it in action.

We chose the name Army Of Zero because (a) the number “zero” is significant to both the gameplay and the prize puzzle competition, (b) there are a lot of warrior-type characters and (c) it references the well-known expression Army Of One.  It’s a good idea to get a trademark registered, partly to make sure that no-one pinches your brand name and partly to make sure that you’re not going to get into trouble by inadvertently pinching someone else’s.

In the UK, you apply for a trademark via the Intellectual Property Office.  You can do it yourself, but it’s one of those jobs that’s probably best left to a specialist, so we employed an Intellectual Property Attorney.  She began by carrying out an initial search for existing trademarks in the same market - toys and games - that might clash with Army Of Zero.  It’s a good idea to do this so that you maximise your chance of getting your own application accepted.  The only thing she found that she thought might be a problem was a game called Army Of Frogs, but she thought it would probably be OK.

We decided to carry on with the application.  With the IPO’s process, you get an initial response in a few weeks stating whether the application has been accepted, and in our case it was, so that was good.  You can then put TM on your stuff, indicating that the trademark has been accepted by the IPO, but then there’s a three-month period during which other trademark holders can raise objections if they feel that their own IP is being infringed upon.

Fortunately the three month period passed without objection, and we became entitled to change the TM to an (R).  It was a long wait, because we didn’t want to go to manufacturing until the whole process was done with.  Apparently people sometimes do decide to do this, if they think they need to get to market fast, but it’s a risk.  We waited, and were pretty relieved when the process had run its course.

Literally a couple of days after the trademark was awarded, we got a very polite letter from Electronic Arts’ legal representatives in California, saying that they’d noticed our trademark application, and pointing out that they had a (computer) game called Army Of Two.  They told us that they wouldn’t object to a card game called Army Of Zero, but that they would get legal on us if we started doing computer games, including web-based games.  They didn’t want people to think that Army Of Zero was in any way related to Army Of Two.

At this point, we had three paths open to us.

First of all, and probably silliest, we could take issue with the EA legal team and see them in court if they felt like being litigious. But it’s not unreasonable to assume that EA have bigger, more expensive lawyers than we can afford, and consequently it doesn’t really matter who’s in the right: whatever the outcome, we don’t really want a drawn out legal battle.

Secondly, we could choose a different name for the game, but we didn’t want to do that because we’d just waited three months for the application to run its course, and didn’t want t owait three more months. And there was no guarantee that at the end of it we wouldn’t have someone else kicking up a fuss.

Thirdly, we could accept EA’s position and agree not to develop computerised versions of Army Of Zero.  Which was what we did - it seemed, and still seems, the least bad option.  I’m sure EA knew we’d see things that way too, and probably that’s why they wrote to us directly after the trademark application was over, rather submitting an objection during the process.  And although it was kind of annoying, it’s probably better for us too that they let things pan out the way they did, otherwise we’d have had to think up a new name and go through the trademark application at least one more time.

Except that we can’t do an online version of Army Of Zero, and now you know why.

This post is all about getting intellectual property sorted out on a game, and is based on what I’ve picked up during the whole process. It applies to the UK - things are different abroad - and , seriously, consider taking professional advice. I’m not a lawyer, and this is just what I’ve discovered for myself. Your experience may well be different, and your requirements probably will, too.

It ended up costing me about £550 total to trademark my game. Not so expensive really, if you’re taking your product seriously, but do keep an eye on how the charges are adding up, and make sure you know what’s being charged for you. I found out that you can’t “just ring up for a quick update” without paying handsomely for it. I think I could do it myself next time, but since I didn’t know the ropes at all first time around, it seemed like a good idea to get someone in who knew what they were doing.

In the UK you don’t need to register your copyright with a third-party; it’s enough to just publish your stuff in some form, and claim the copyright by putting, for example, “© 2009 Point Zero Games Ltd.” on your materials. If you want to be ultra careful, put the stuff in an envelope and send it through the post to yourself of your solicitor, and make sure it stays sealed when it arrives. Then if it comes to it later, you’ve got proof that you published yours first.

I considered a patent application, but really there’s nothing in my game that needs patenting; if you have something that original, then good for you, but according to my IP attorney it can take YEARS to have your patent approved, and in my case, it wouldn’t even have helped.

A good thing about getting your trademark is that not only are you protected from someone ripping you off, but the trademark application process also helps you to avoid inadvertently stepping on someone else’s toes. The computer game manufacturer Electronic Arts sent me a letter because they have a long-standing trademark for a computer game that has a name not a million miles from my card game. We agreed that I wouldn’t upset them by moving into computer games and everything was straightforward and professional, but if I had gone ahead without registering, things might have subsequently got a bit messy, who knows? It’s better to be covered on this stuff, I suggest, unless you have the resources and the stomach for a legal battle.

I’ve also been told that distributors are much more happy to take you on if they can see that there aren’t going to be any nasty legal problems.

One more thing: if you’re going to apply for trademark, do it as soon as you can. Even once you’ve sorted things out with your attorney, it takes the UK Intellectual Property Office three months to process your application (this three-month period is designed to give other trademark owners a chance to object), and then they add on another week or so just to make sure that no paperwork got lost down the back of a filing cabinet (or something). This actually caused a delay for me in getting to print - I didn’t want to start the presses rolling until the trademark got approved, although my IP attorney tells me that sometimes manufacturers do that if getting to market quickly is important, with their fingers firmly crossed that a late objection won’t be forthcoming.

Good luck!

Army Of Zero’s USP is that, besides being a card-and-dice game, it has a prize competition.  Naturally, I don’t want to get into trouble over this, so I’ve been reading up on the Gambling Act 2005, via a PDF downloaded from the Gambling Commission’s web site (Prize competitions and free draws).  Here’s what I ended up with.

[UPDATE: Obviously, we're talking UK law here.]

First of all, Army Of Zero wouldn’t be classified as a lottery or a free draw, because no element of the process of selecting a winner is based on chance.  Therefore, it is defined under the Act as a prize competition, and as such, it is free of statutory regulatory control under the Act.  According to the document:

[I]n prize competitions, success depends, at least in part, on the exercise of skill, judgement or knowledge by the participants.

In the case of whether the level of skill, judgement or knowledge is disputed, the Commission will be happy if the organiser can show that the competition was hard enough to deter a significant proportion of people from entering, or once they had entered, prevent a significant proportion from winning a prize.

This can be evidence based, or the organiser can argue that it is self-evident.  I’m prepared to argue that the competition is hard enough for this to be self evident.

I’m going to ask competition entrants to post in a card or other indication from the game box, so that I don’t get lots of entries from people who haven’t bought the game - primarily in case someone does something unpleasant like get the answer and post it online somewhere.  Does this make it a pay-to-enter competition, and if so, are the other legal ramifications?

Further research turned up this page, which says that:

Promoters of ‘pay to enter’ competitions will need to ensure that entrants are required to exercise an appropriate degree of skill.

So the conclusion is that, given that the Army Of Zero competiton is basically all skill, we should be OK.

One of the Gambling Act’s main aims, it seems, is to stop unscrupulous people from making money out of fleecing people: phone-in competitions where the question is ridiculously easy are among its main targets.  Although red tape is often criticised, I’ve usually found that regulations aren’t too stringent and that as long as you’re sensible and play fair by the public, you’ll usually find you’re inside the law anyway.  It’s only when you try to be a bit of a wide-boy that you start to rub up against potential legal issues.  Isn’t that the way it ought to be?