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A Case Study in Casual Gaming: PlayFirst and Diner Dash

One of the advantages of creating casual games is that there are nearly as many publishers as developers, so the developer does not always need to build the infrastructure to release the game online. That being the case, how does the developer protect their game from being copied by others, when the delivery method is in the hands of a third party?

One way would be to have the publisher sign a contract promising that they will take reasonable precautions to protect the developer’s game, while still making it downloadable and playable by the public. Another would be to have a legal department the size of the creative team, so that each and every imitator gets a nasty letter in the mail, telling them to stop copying the game created by the developer.

The third path, however, and the one that will be examined this week, is to create a family of related games, and to register the common elements as trademarks, so that anyone copying those elements will face more severe penalties. As suggested by the title of today’s post, one such company that follows this path is PlayFirst, the creator of the very popular Diner Dash series of games.

In addition to their 57 trademark applications and registrations, PlayFirst also has 38 Copyright registrations, on both characters within their games (Flo) as well as on the audio-visual component of the games themselves. The trademark registrations vary from titles of games to character representations, to the

Diner Dash, for those who don’t know, is a time management game where the player takes on the role of Flo, a waitress at a restaurant. The purpose of the game is to serve customers and to make enough money by doing so to meet the goal of each level. There have been five versions of Diner Dash, not including adaptions for different consoles, and a number of spin-off titles. A few retain the same main character and type of game, replacing the restaurant with a hotel, while others adopt a “find the object” style, or more of a puzzle game mechanic. Still others use minor characters in their own series of time management games, such as Wedding Dash, and Parking Dash.

One of the more interesting things about the trademark registrations owned by PlayFirst is that they actually own the word “DASH” for use with video games and entertainment services. In theory, this means that other games have to use “Rush” or a similar word for the same type of game, but it really seems to indicate that the trademark office allowed the registrations for a “house brand” rather than for an individual product.

And while it might seem ludicrous that one company could “own” a word in the video game space, in reality trademarks are evaluated as a whole, and the court will compare the target audiences. A game called “Freestyle Dash” involving a track and field competition would probably be able to use the word without needing a license. It is possible that PlayFirst uses the registration as a starting point in negotiations, and has no intention of litigating, where the registration might be made worthless, but that is for the company to know, and the players to ignore.

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