Gaming Industry IP News: James Bond parody faces trademark challenges, Steal a Brainrot developers battle IP theft, USPTO makes a move in the Nintendo reexamination, and more

To help you stay on top of the latest intellectual property news in the gaming industry, we publish a monthly roundup of the developments we are following.

His Trademark is Pond, James Pond … or is it?

TimeExtension reports that the UK video game character James Pond, a clear parody of James Bond, is facing several new trademark registration challenges from the IP owner of the original British super-spy. The Pond video game franchise, which began in 1990, has been more or less dormant since 2011 (notwithstanding an unsuccessful Kickstarter campaign in 2013). However, it appears that the current IP owners, Gameware and System 3, are looking to revive the franchise. In connection with this revival, the pair sought new trademark registrations, which have been opposed by Danjaq, Inc., the holding company for the James Bond IP.

Unsurprisingly, this is not the first IP bout between Danjaq and James Pond. A search of the U.S. trademark registry shows that in 1993, the original James Pond IP owner, Millennium Interactive Entertainment, filed for similar trademarks. Danjaq opposed both registrations, and the cases were ultimately abandoned shortly after the oppositions were filed. However, this appears to be the first time Gameware and System 3 have attempted to register a trademark in the UK. An unrelated James Pond trademark, one for yogurt and related goods, was registered in 2007, though it has since lapsed, and no other “James Pond” trademarks appear in the UK registry. With Danjaq filing an opposition here as they did long ago, we will have to see if the modern IP owners are more willing to push for registration than their predecessors.

Steal a Brainrot Continues to Battle IP Theft

We have previously discussed the developers of Steal a Brainrot and their attempts to protect against perceived IP theft (i.e., preventing others from Steal[ing] [the] Brainrot). Now, Bloomberg is reporting on the developers’ continued efforts to take down derivative games in court. One major step, beyond directly suing the developers of the alleged infringing games, includes taking action against some of the websites that host these copies, such as stealbrainrotio.io. That website reportedly “hosts 12 allegedly near-identical versions of the original game,” according to the Bloomberg article.

The enforcement actions brought here focus on Spyder Games and Speedy Simulator Gaming (the “Owners”) and their federally registered copyrights over the “visual and textual content, layout and design of menus, in-game objects, artwork, and overall aesthetic.” The Owners do not claim ownership over the titular “Brainrots” themselves, as the creatures are entirely AI-generated, and the Copyright Office currently does not grant ownership to purely AI-generated constructs. However, the Owners’ existing copyrights may still prove difficult to fully enforce. Menus and similar elements are often subject to more limited protection (sometimes referred to as “thin copyrights”) due to the partially functional nature of such components (since, under the idea-expression dichotomy of U.S. copyright law, copyrights only protect expressions, not underlying ideas / concepts).

That being said, it is unlikely that many of these smaller developers (who are potentially just hoping to siphon off some of Steal a Brainrot’s player base while the game remains popular) will attempt to fight the copyright claims. The developers purportedly engaging in copyright infringement may simply move on to newer trends and let their previous games be taken down.

USPTO Summons a First Office Action in the Nintendo Reexamination

As we discussed in a recent Snippets article, Nintendo has received its first Office Action in the director-initiated reexamination of one of its patents. The Office Action is the United States Patent and Trademark Office’s (USPTO) initial reevaluation of the patent and includes rejections in light of several existing patents (i.e., “prior art”). Nintendo now has a set period to respond to the Office Action, which is the next likely step. If, instead, Nintendo does not respond, the patent will be abandoned. While this rejection means that Nintendo may have to narrow its existing claim scope, it does not mean that potential targets for enforcement (e.g., Palworld developer PocketPair, Inc.) will be entirely in the clear. Any patent that issues out of this reexamination may still be infringed by competitors. We will continue to follow this case to see how Nintendo decides to respond.

Performing Rights Society Sues Valve for Failing to License Performance Rights

Gamesindustry.biz reports on a new filing against video game developer and distribution company Valve. The Performing Rights Society (PRS), a UK-based collective of musicians and other performance artists, has filed suit against Valve for failing to obtain the proper licenses before selling games containing member-owned music on its multinational distribution platform, Steam. The PRS is suing Valve under the UK’s Copyright, Designs and Patents Act 1988, which requires any game using such music to obtain a license to “make available” music for sale under UK law.

Additional reports provide further details. In short, members of the PRS tend to assign, to the PRS, the right to make their music available for sale (the “make available” right) so that the PRS can handle this aspect of licensing / enforcement on their behalf. Separately, traditional music labels hold the reproduction rights for the music. According to the PRS, Valve, as the party “making the game available” via its online platform Steam, needs to obtain a license from the PRS to sell games that contain music owned by PRS members. The PRS has reportedly tried for several years to convince Valve to obtain such a license and appears to have filed suit only after exhausting other avenues. The PRS has historically gone to great lengths to enforce copyrights on its members’ behalf, once even requiring cab drivers operating within the UK to obtain licenses to play the radio while transporting customers. Suffice it to say, this lawsuit is likely more than a halfhearted attempt to shakedown an industry giant.