From concept to console: protecting video games through IP

In the first article of our video games series, we explore how design rights, trade marks and patents can work together to protect video games and why developers should be thinking about these rights from the earliest stages of development.

Video game developers invest significant time and resources creating distinctive worlds, characters, technology and brands. A robust intellectual property (IP) strategy can help protect those valuable assets, support commercial growth and enhance investor confidence.

While copyright is often associated with the games industry, developers should also consider the complementary benefits of design rights, trade marks and patents.

Design rights: protecting the visual appearance of games

Design rights serve to protect the visual appearance of a product, including elements such as the shape, contours, texture and colours of the product and/or its ornamentation.

For video game developers, registered designs may be important in protecting the visual, spatial and graphical elements of a game, such as:

• graphical user interfaces (GUIs) and head-up displays (HUDs), menus, icons, control panels, cursors, and spatial interfaces visible within games;
• virtual assets and objects, including avatars, 3D models, in-world items and equipment, and digital fashion/skins; 
• character designs,
• spatial environments and arrangements, including virtual worlds, rooms, architectural layouts, training spaces, or simulated industrial environments;
• animations used in games, such as loading sequences, transitions, gesture effects, haptic feedback visuals, and even footage of actual gameplay; and
• gaming hardware and accessories.

In the UK, legal provisions under the Registered Designs Act 1949 (“RDA”) provide a strong basis for protection of such elements in games. While the UK definition of “products” under the RDA has not been explicitly expanded to include non-physical or digital items (like in the EU), UK law already recognises “graphic symbols” and “typographic typefaces” as falling within its definition of a product. Many game assets (including icons, tool overlays, UI indicators, pointers, reticles and gesture icons, and GUIs) are considered as falling within the category of “graphic symbols” and are therefore graphical works suitable for design registration in the UK.

Furthermore, recent changes to the EU Designs Regulation, effective since 1 May 2025, have thankfully now enhanced the protection available to assets within game environments. Specifically, the changes to the Designs Regulation have modernised the definition of the term “product” to now include non-physical and digital objects, such as graphic user interfaces (GUIs), virtual products and virtual arrangements of items that exist in game environments. The express inclusion of non-physical and digital objects under the definition of “product” now makes it far easier for applicants to protect elements of their game environments under design law.

The EU Design Implementing Regulation (No. 2026/138) has also given applicants more freedom and flexibility to accurately depict their design in an EU registered design application. As of 1 July 2026, the EU Intellectual Property Office will now accept alternative file types depicting designs – it is now possible to file an EU design application using video files or computer-modelled visuals such as CAD files. This increased flexibility will allow for animated and dynamic content to be filed and represented more effectively and accurately. Previously, representing movement/transition was technically possible, but very difficult; the new implementing rules allow animated and dynamic forms of representation to align with the inherent interactivity of games.

Some recent examples of such animated content protected by design registration are:

• Bubble Word Jam - https://www.tmdn.org/tmdsview-web/#/dsview/detail/EM700000015152934-0005 and https://www.tmdn.org/tmdsview-web/#/dsview/detail/EM700000015152934-0006
• Arrows – Puzzle Escape - https://www.tmdn.org/tmdsview-web/#/dsview/detail/EM700000015146694-0001
• Candy Rush - https://www.tmdn.org/tmdsview-web/#/dsview/detail/EM700000015147293-0004

It is relatively quick and cheap to obtain an EU registered design, and reliance on registered rights, over unregistered EU design rights, has a number of advantages. Registered rights provide a true monopoly right over the appearance of the design that can be used to prevent all others, including those who come up with the same idea or design independently, from using or commercialising the protected subject matter.

On the other hand, unregistered design rights require proof of copying for there to be infringement of the earlier rights. Therefore, independent creation of a later design that reproduces the overall impression would not infringe these earlier unregistered rights. In other words, once you register a design, you do not need to prove copying; independent creation is not a defence in registered design infringement.

Registered protection therefore provides developers/creators with an effective basis to challenge both third parties who intentionally produce “look-alike” experiences and/or virtual assets, or those who independently (and perhaps inadvertently) create designs that reproduce the overall impression of a creator’s earlier design.

It is also important to flag that, when initiating take-down requests against allegedly infringing titles on platforms such as Steam, creators can only rely on registered design rights. Unregistered design rights are not considered a valid basis for requesting take-down. 

There are also clear advantages to creators in obtaining registered design rights over relying on any potential copyright protection that visual elements in a game may attract. Whilst it is now clear that the majority of the aesthetic or visual elements of games are now protectable via registered design rights, what is and isn’t protectable under copyright law is less clear and differs between the UK and EU legal regimes.

In the EU, the scope of protectable subject matter has been interpreted very broadly in recent case law (see for example the decisions of Mio/konektra, C-580/23 and C-795/23), where “originality” was confirmed as the only requirement for works of applied art (such as the elements contained within a game environment) to be considered protectable under EU copyright law. In other words, so long as the applied art is the result of the author’s own intellectual creation and reflects the author’s free and creative choices, then it will in principle be protectable.

In the UK on the other hand, the scope of protectable rights are far narrower. Under UK law, only the subject matter specified in the closed list within the Copyright Designs and Patents Act 1988 (“CDPA”) are considered protectable. The list includes artistic, literary, dramatic and musical works, as well as sound recordings and films. Whilst some elements within game environments may be considered as protectable as either artistic works (for example design drawings or static images of virtual assets and objects under section 4(1) of the CDPA) or films (such as animated sequences under section 5B of the CDPA), the artistic quality of other elements such as GUIs may not currently be considered protectable under UK copyright law.

As a result of the new EU Designs Regulations, it is now easier than ever to protect visual elements within a game as EU registered designs. These design rights provide greater legal certainty over alternative rights (such as unregistered designs and copyright protection) and can be used, in principle, to protect any novel aesthetic or visual element within game environments.

Trade marks: protecting game brands

Trade marks protect the signs that distinguish a company's products and services from those of its competitors.

Trade marks can be used by game developers in order to protect various elements of their games, including: 

• game titles,
• studio names,
• logos,
• character names,
• the visual appearance of characters, and
• esports teams and events.

Strong trade mark protection can help developers prevent others from using confusingly similar branding and can create valuable commercial assets that support licensing, merchandising and investment activity.

For established franchises, trade marks often become one of the most valuable forms of IP protection because they can potentially last indefinitely when renewed.

Trade mark protection and enforcement strategy play a key role in supporting the commercial aims and objectives of game developers.

Trade mark registrations can grant exclusivity to a broad range of elements associated with the developers and the games they are producing, as outlined in the list above. Registered trade mark rights allow games developers to prevent third party use of identical and confusingly similar brands for identical and similar goods and services, and in some circumstances for goods and services unrelated to their core areas of protection if the associated brands enjoy a reputation in the UK.  

Trade mark registration also allows games developers to future proof the potential expansion of brands in other areas, in particular if there are merchandising opportunities on the horizon, or if a game title has potential to be adapted into a film or tv show. In the current climate, where the cultural impact of gaming is significant, these considerations should form part of games developers’ strategy from the outset to ensure that any filings incorporate the full range of commercial opportunities of interest to them. The importance of ensuring that registrations are sufficiently broad to encompass genuine future expansion into other areas can be seen by the changing specifications in the GTA trade marks owned by Take Two Interactive.   

The cultural shift in gaming and commercial opportunities available to game developers since the launch of the original GTA, which now sees gaming intersecting with other forms of entertainment such as movies, TV and music, is reflected in the breadth of specifications claimed in the latest UK trade mark registration associated with the GTA VI title. For example, the first GRAND THEFT AUTO registration in the UK (filed in 1996) claims a range of software, programs and video game goods in class 9, as well as printed matter and stationery in class 16. However, the UK registration for the Grand Theft Auto VI logo reflects the changes in the market, and the commercial opportunities associated with gaming titles, with expansion in class 9 extending to digital materials including films and motion pictures, and addition of broad entertainment services claims in class 41, as well as clothing in Class 25. The application was also filed in 2023, which reflects the long lead-in time before launch and the significant marketing activity occurring within that period, supporting their position to leverage their rights when negotiating with third parties and to enforce them against infringers. 

The inclusion of all potential goods and services in trade mark specifications also gives game developers increased leverage when seeking to licence their branding for use by third parties. 

Patents: protecting technical innovation

Patents can protect innovative technical solutions and are often overlooked within the games industry. However, they can provide significant commercial advantages beyond enforcement, including attracting investment, strengthening acquisition discussions and creating barriers to competitors.

In the UK and Europe, patent protection for games software is generally limited to technical innovations rather than game rules or mechanics themselves. Areas that may be patentable include: 

• hardware-specific performance optimisations;
• novel input mechanisms;
• technical user interface improvements;
• network and online gaming innovations.

Examples include technologies that improve graphics processing, reduce latency in online games or enhance interactions between software and gaming hardware.

By contrast, jurisdictions such as the United States and Japan can offer broader protection for certain in-game mechanics. High-profile examples include Warner Bros.' patented "Nemesis System" from the Shadow of Mordor franchise and Nintendo's patents seemingly related to mechanics from the Pokémon series.

As modern games are distributed globally using online platforms, developers should consider international patent strategies utilising these more lenient patent systems to obtain indirect protection of in-game features in more patent-restricted jurisdictions, such as the UK and Europe.

Taking a joined-up approach

No single IP right protects every aspect of a video game. Instead, the most effective strategy is usually a combination of rights:

• design rights for visual appearance
• trade marks for brands and commercial identity
• patents for technical innovations

By identifying and protecting valuable assets early, developers can strengthen their competitive position, support future growth and maximise the long-term value of their creations.

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