The evolution of the esports industry has allowed it to become more than tournaments and prize money. The availability and prominence esports athletes and streamers have to the public have positioned the industry with a direct path for growth. As the industry has developed, one key area has dominated: content creation. Content creation includes the production of videos, streams, podcasts, and the like. Essentially, content creators use some form of media to showcase their gaming and personal lives. Content creation, in and of itself, is rather expansive, as it can include professional players as well. Because of the accessibility and visibility that a content creator can obtain, understanding one’s brand and its corresponding financial potential is of significant importance, legally and otherwise. The line between the casual consumer, the content creator, and the professional in esports is blurry at times. Thus, identifying the legal implications that exist for those who pursue esports, whether as a creator or a professional, is of the utmost importance. Recognizing the worth of a name and/or brand and finding ways to actively safeguard and bolster them is what the law is designed to achieve.
One of the main areas of law closely tied to and interrelated with esports is intellectual property law (IP). IP is, from a legal standpoint, the main driving force of the gaming industry. For developers, IP rights help establish and protect the creation of a new game or title. For content creators, IP protects their renderings and the individual content they produce (whether it involves a game or just their likeness). Outside of this, media platforms, such as Twitch, that seek to broadcast or utilize games for financial gain must obtain permission from the IP rights holder in order to do so. Accordingly, if a content creator or production company seeks to host a tournament and subsequently charges for the cost of attendance, it could be in direct violation of the developer’s rights unless it has acquired the developer’s permission. However, IP is not limited to the developer’s creation or broadcasting of a game. In fact, IP also extends to the individual brands of content creators or professionals.
Most esports athletes have a moniker, nickname, or “tag” that they go by. This tag often becomes more prominent than the person’s everyday name. When a name has become synonymous with one’s identity and brand, the best thing to do is seek ways to protect it. IP does precisely that. Distinguishing how to protect a brand, a name, and the content creator’s medium of distribution is exactly what content creators need help with and is where the attorneys can step in.
The most apparent IP protection would be navigating how to obtain a federal U.S. Patent and Trademark Office registration of a trademark for the content creator’s tag. Often, this can be difficult, as the name itself might not appear to outwardly comply or qualify with the rules for attaining a federal trademark registration. Consider the popular content creators Ninja and Tim the Tatman. In recent years, Ninja and Tim have sought formalized protection via federal trademark registrations for their respective brands and online identities. However, it is important to remember that the scope of federal trademark registration protection is determined with reference to the relative breadth of the goods and services denoted by the mark and how many “classes” of goods and services the mark is registered under. For instance, deciding that the tag will be registered solely under a class protecting “advertising services” may limit the potential and availability of the mark for use in connection with “apparel” down the road. Accordingly, federally registering your trademark in a manner that comprehensively covers all of the products (and in all classes) in which you are actually using the mark to offer such products provides the greatest degree of trademark law protection.
An additional option for a content creator who may not yet be using a trademark to offer a new product but who has a bona fide intent to use such mark with such product in the near future would be to apply for federal registration of the mark in connection with such new product by filing an “intent-to-use” trademark registration application. Applying to federally register a trademark on an intent-to-use basis allows the content creator to begin the federal trademark registration process before using the mark in commerce, so long as it has a bona fide intention to do so in the near future. Once the use of the mark in commerce subsequently begins, a filing must be made to verify that such use has commenced, which then allows the application to proceed to registration, assuming the mark meets all other requirements for registration. An “intent to use” trademark application can be of great value to a content creator who is preparing to use a mark in connection with a new product but is not yet ready to offer the product in commerce.
IP protection spans far beyond just a content creator’s tag. For instance, an organization’s or content creator’s logo may become just as prominent as the individual tag or name, if not more popular. Examples of this in the esports industry are organizations such as Team Liquid and 100 Thieves. Similar to the process for obtaining protection of a tag, the trademark application for an organization seeking to protect its logo needs to encompass a rendering and drawing of the logo and select the proper classes to register under. Consider 100 Thieves, for instance. What has made 100 Thieves unique in recent times is the strength of their apparel releases and exclusive drops. Due to the ever-changing nature of these releases and the differing variations of the logos that 100 Thieves uses, they had to obtain and seek trademark protection for each variation, and they selected classes of goods and services that span their full range of uses from bandanas to tote bags. Obtaining the proper protection for any mark is paramount.
The significance of having a trademark is to establish the ability to protect the mark and enforce the rights of exclusivity. Understanding how to obtain such protection and implement it properly is why having seasoned and experienced lawyers involved is critical. If you or your organization require assistance obtaining IP protection or assessing a legal inquiry or risk regarding esports and the law, we are happy to help.
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