Intellectual Property can be a difficult topic to publicize, so credit is due to the BBC for continuing to keep the fundamentals of the patent system in the public (Dragon’s) eye year after year. Auntie Beeb’s mission statement is to inform, educate and entertain, and for such a weighty topic, you would expect the home of respected heavyweights such as Attenborough, Bragg, and O’Carroll to be firmly in favour of educating the public and bringing the subject to the attention of younger consumers.
BBC Bitesize is an online study support platform for school-age students in the UK, and contains lots of articles that delve into interesting titbits from the news. I, as a mostly grown man, therefore was naturally drawn to a blog post entitled ‘How do you invent a new sport?’. The article itself is a brief discussion of the history of Bossaball, a mix of football, volleyball and extreme gymnastics.
Unfortunately, the blog has a rather fuzzy approach to the fundamentals of IP, which will no doubt encourage the reader towards some of the more common misconceptions about the difference between patent, trademark and copyright law.
The laws of invention
“Creating a sport isn’t just about building a player base – patents also comes into it. A spokesperson for the Intellectual Property Office (IPO) explained to BBC Bitesize that the name of a sport can be trademarked in the UK – recent examples are Zumba, Boxercise and Spinning. Rules of the game can’t be trademarked but they can be protected by copyright, and revisiting them over time also keeps them in copyright.”
There is a lot to unpack here.
- The focus of the is on trademarks. The names of the new sports referenced are protected by Registered Trademarks. This is fine – a trademark protects branding or trading stylisation – but these are definitively not
- The rules of a game cannot be trademarked, but this isn’t really the point. What the author wants to say here is that the rules of a game cannot be patented (in the UK). Rules for a game are explicitly excluded from patentability. A patent can protect the method of a technical invention (such as a method of manufacture), but the rules of a game are deemed non-technical in nature.
- The rules of a game can be copyrighted, in the sense that the literal wording of the rules codifying the game fall under the scope of copyright protection, if original. Copyright cannot protect the underlying concept of a game.
The confusion between trademarking and patenting is reiterated in the next paragraph:
“Anything unique to a new sport in terms of equipment can be trademarked. The IPO has seen patents registered for wetsuit technology linked to triathlons, with many more for equipment linked to rugby and cycling. The UK is also number one in Europe for patents regarding sports-adapted wheelchairs used in the Paralympics and other events.”
In this instance, I believe the author is referring to trademarks when they mean patents. The name of a piece of equipment can be trademarked, but the unique (and inventive) aspects of a product can be patented.
A cursory search of the patent databases finds a single British patent application to a ‘sports wheelchair’, GB2130154, which dates back to the 1980’s. It’s not clear where the assertion of the UK’s pre-eminence in the sports-adapted wheelchair technology sector arises from, but I for one would be interested to know more!
Potentially, some of the confusion arises from the conversation with Filip Eyckman, the creator of Bossaball. He acknowledges a tricky past with the enforcement of his IP over the years.
The Bossaball website directs the reader towards a page entitled ‘Patents’, which recites the following:
“Bossaball Sports S.L. is the owner of all rights worldwide. Bossaball Sports S.L. is protected through international copyright and additional trademark and design patents worldwide.”
Herein lies another common misconception about IP – the existence of the ‘design patent’.
A design subsists in the aesthetic (i.e. non-functional) aspects of a product. Bossaball Sports S.L. do not appear to have any patents (called utility patents in some jurisdictions, such as the US), but instead have design patents or registrations.
As such, Bossaball Sports S.L. IP rights portfolio would appear to comprise the following (in at least some territories):
- Protection, via a design patent/registration, over the aesthetic appearance of the inflatable court, upon which Bossaball is played.
- Protection, via a trademark registration, to at least the Bossaball name.
- Protection, via copyright, to the written rules of the Bossaball game.
What Bossaball can’t do, it would seem, is prevent the unauthorised use of a game played on an inflatable court which looks different to that protected by the design patent/registration, under a different name, and not utilising a copy of the rules created for Bossaball.
So how do you protect a game?
Whilst it may seem as though Bossaball Sports S.L. have vulnerabilities in their portfolio (i.e. potential avenues for copycats to arise), the vulnerabilities are narrow in scope. The protection sought by Bossaball Sports S.L. is actually a textbook case as to how to obtain some sort of protection for a game which otherwise cannot be patented.
- Obtain design (or, if feasible, patent) protection for any equipment or paraphernalia in the game;
- Register the game name as a trademark, and build up brand awareness to improve the strength of the trademark; and
- Ensure that you have good and detailed records of copyrightable material, so as to permit enforcement of any rights available against direct copycats.
What you shouldn’t do is mark your concept as patented or patent pending, when you only have trademark to the brand. This is illegal, and highlights why it’s important to be selective in the terminology you use in the IP arena. So I tip my hat to BBC Bitesize for raising these points to the wider audience, whilst giving them a digital slap on the wrists for using some misleading phrasing!