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A Case Study in Casual Gaming: Genericide

By now, it should be clear that my area of interest lies in the various ways in which video games and the American legal framework interact. For casual games, especially, the market seems to focus more on protecting the identifying aspects of the games that can be used or registered as a trademark, and less on the creative or functional elements, which would be better protected by copyright or patent law.

Some companies have more aggressive trademark registration practices than others, and one such company is going to be the focus of discussion this week. Before getting into specifics, however, a few words on popularity and the dangers of trademark genericide.

Various games become “iconic” for a genre of game, with the title often used as an example for the whole group, rather than describing the group by using the more generic category. This can be both a blessing and a curse, as it proves that consumers are highly aware of the product or game, but it can lead to “genericide” where the brand name becomes the generic term for that type of product.

Certain steps are taken by the trademark owner to prevent this process from totally destroying the effort and marketing put into building and controlling the brand, such as reminding consumers not to use the brand as a verb (to photocopy, not to Xerox) and not to refer to all types of the product by the individual brand (smartphones not iPhones). Some companies brave the dangers of genericide by promoting their brand as a verb, with “to Google” being the clearest example of a brand that dominates the market, and yet still has a powerful name.

Once a trademark has been registered, it remains protectable by the owner so long as they keep their fees up to date, and the mark is not rendered unenforceable in court. Most trademarks that have lost protection in the US for becoming generic have been attacked in this fashion, with only a few companies or industries taking on the challenge of proving to the US Patent and Trademark Office that the term is now in general use and is no longer indicative of any one brand within that particular market. Some examples of words that have lost value in the US are: aspirin, heroin (it was registered at one point), butterscotch, zipper, and escalator. Kleenex is not generic in the US, nor is Xerox, although both came close in the 1980s, and the owners have to remain vigilant.

What does all of this have to do with casual games? Once a type of game comes to represent the rest of the genre, then the value in that game may be significantly decreased. Casual game development cycles are shorter than “traditional” games, and what makes one successful and another not may have less to do with game mechanics and more to do with individual style. Genericide in the casual games market happens when one company introduces an innovative element to a game, and everyone else rushes to copy it.

It happens too fast for much to be done about it, especially if the original company copied something else to create their “innovation” but once everyone uses a thing, and consumers associate the innovation with the type of game rather than the first adopter, that element is nearly unprotectable. Many game developers are too busy working on the next game to have a solid protection plan in place before releasing their game, and many more don’t mind the borrowing by other companies.

Tuesday: A company with a Trademark Protection Plan, and the interest in protecting their IP.

Posted in Monday: Legal Landscape.

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