Infringement of a game
26.05.2002
How is a game protected ? Is it possible to sell a game which is "similar" to an existing game ?
How is a game protected ? Is it possible to sell a game which is "similar" to an existing game ?By a judgement of June 19, 2001, the Tribunal de Grande Instance de Paris (first instance court) gave some answers.For its game "Puissance 4" (each player tries to align 4 tokens in a vertical pattern), the Company H. claims :- a design in color of the game in pocket-size (filed in 1997) ;- a design in color of the game in classic size (filed in 1997) ;- a trademark representing the packing of the game in classic size (picture of a child playing with an adult + the game + the sign "Puissance 4") ;- a copyright on the rules of the game and on the presentation of the game (sold since 1980) ; indeed, it is possible in France for an object to be protected by both a design right (which needs a filing) and a copyright (which does not need any filing).The Company H. has sued the Company S. which commercialized a game "Quatre en ligne" ("Four on line").On the ownership of copyrightThe game "Puissance 4" was commercialized by the Company MB since 1980 as shown by catalogues.It has been proved that the Company MB has been bought by Company H. and that the change of name has been recorded in the French Companies Register.The commercialisation of the game has then been done by Company H.Company H. is thus presumed to be the owner of the copyright on the game "Puissance 4" since 1980.The Company S. which commercializes its game since 1994, i.e. before the filing of the design by Company H. therefore cannot claim copyright on its proper game; neither invalidate the design, its novelty being examined at its creation date (1980) and not at its filing date (1997) pursuant to previous French law.It has to be noted that pursuant to the new law (Ordinance 2001-670 of July 25, 2001), the disclosure by the author himself, more than one year before the design filing, would have invalidated the design of 1997.On the protection of the gameThe rules of the game "Puissance 4" are to set in a line, column or diagonal, 4 tokens.It is original and thus protectable by copyright, because it is done in a vertical pattern in which each player places its tokens ; because of its pattern itself and because of the colors of the pattern and of the tokens (blue pattern having 7 columns of 6 holes each, 21 red tokens and 21 yellow tokens).The pattern and the tokens are also protected by the design right (filing of 1997).On the infringement of the design right and copyrightThe game "Quatre en ligne" is composed of a red pattern having 7 columns of 6 holes each, 21 yellow tokens and 21 blue tokens, the rules are exactly the same.The change in colors (just an inversion) is inoperative and the game infringe the design and copyright.On the infringement of the trademarkThe game counterfeiting is commercialized in a packing representing an adult and a child playing, the pattern and the mention "Quatre en ligne".The Court underlines that the use of a picture "adult + child", of primary colors and of the number 4 is not an infringement. It is the use of the whole, the players, the same pattern, the 4 indicating the number of tokens to align..., which creates a likelihood of confusion in the mind of the public which does not see the two games simultaneously.ResponsibilitiesThe Company H. has shown different facts of counterfeiting by a seizure for infringement done in a shop and in the office of the French branch of the Company S :- offering to sell by the shop ;- selling and importing by the French branch ;- manufacturing by the German head office (the game packings were marked "Made by S. in Germany").
