Q. I invented a new board game that I think will make a big hit in the market. What form of intellectual property should I use to protect it?
A. This is an interesting question, because board games like Trivial Pursuit and Scrabble often encompass all forms of intellectual property (IP)-trade secrets, copyright, patents, trademarks and unfair competition. So let's examine each and how it's applicable to your board game.
Initially the idea and concept of your board game is a trade secret. A trade secret is any information that isn't generally known or publicly available that can give a business a commercial advantage. So everything novel about your board game, until released to the public by sale or discussion in a publication, is a trade secret. To keep your trade-secret rights, make a written record of the game's details, sign and date it, write "Witnessed and understood," and have two witnesses also sign and date it so you can prove you invented it and when you did so. Keep the game details confidential, but if you must show it to someone, have them sign a nondisclosure agreement.
The second form of intellectual property that can be used to monopolize your game is a copyright. A copyright is a right granted by the government to protect the works of an author, artist, programmer, choreographer, artist, photographer and so on. A copyright provides a narrow monopoly since it covers only the way an idea is expressed and not the idea per se. In the board game area, a copyright can be used to cover the design of the game board and any associated hardware, the design and artwork of the game's box, and the wording of the rules of play.
If the game's apparatus-the playing pieces, board or equipment layout, rules and so on-is different enough to be considered "unobvious," then you can patent it. To get a patent, you must file a detailed description of the game's apparatus, including drawings, with the U.S. Patent and Trademark Office (PTO), pay a filing fee (currently $345), and sign some forms. But it's wise to make a patent search first to be sure your game is sufficiently novel. Patents can provide a very broad monopoly, but they're the most difficult form of IP to acquire. A patent lasts 20 years from its filing date and can't be renewed.
The name of your game is a trademark and can be monopolized as such. A trademark is a brand name (like Ford, Coke and Scrabble) that a business uses to distinguish its goods or service from those of its competitors. You merely need to use a word or other symbol as a brand name to acquire common-law monopoly rights in the mark. However, your rights will be much stronger if you register the mark with the PTO. A trademark can be a broad form of IP and can be renewed indefinitely, as long as it's used.
Unfair competition is a right similar to the trademark right, but it usually covers a commercial aspect of a good or service that is distinctive but not distinctive enough to be considered a trademark. Under common law, or judge-made laws, you can sue infringers. For example, an unusual coloring of game pieces can be covered by the rules of unfair competition. It's a common-law right and is generally fairly narrow.
For more information, visit the PTO Web site at http://www.uspto.gov.
The opinions expressed in this column are those of the author, not of Entrepreneur.com. All answers are intended to be general in nature, without regard to specific geographical areas or circumstances, and should only be relied upon after consulting an appropriate expert, such as an attorney or accountant.
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