Copyright in video games, and trade marks for remote controls

One video game, some employees, and copyright issues

As the video game Aemon Must Die was released last week, issues related to the copyright over the content of the game resurfaced. A part of the team of developers who worked on the game left the video game publishing company Limestones Games, and seem to have a grudge against their ex-employer for several reasons, including the IP rights that they believe they have over their own work in Aemon Must Die..  

As they left, these employees – including the chief creative officer of the company – accused their former employer of IP theft for some elements appearing in the game. The computer code behind the game but also the creative graphic elements of the game are copyright-protectable. While the norm is that IP created by employees during the normal course of their employment is owned by the employer (note that exceptions may apply), the ex-employees claimed that much of the game was created outside working hours, which went unpaid. It was therefore not created “in the normal course of employment” and these visual elements of the game are therefore the property of the employees who created them.

The game was launched last week, and the parties do not seem close to finding an agreement: no later than last month the trailer of the video game was taken down momentarily from the YouTube platform due to a copyright claim filed by an ex-employee. Both parties issued statements defending their point of view on the day the game was released, it remains to be seen if an agreement will be found or if this history will be taken all the way to court.

This episode nevertheless serves as a good reminder that employers – especially in creative industries – must be careful with the question of IP ownership of works created by employees. While the norm is that works created by employees in the course of their employment is property of the employer, IP ownership clauses in contracts should be as clear as possible to cover all possibilities so as to avoid legal uncertainty should the relationship with the employee sour.

Business partners and bad faith trade mark applications

To follow on the topic of good relationships going bad and IP disputes arising as a result, an interesting case is taking place between two companies for the ownership over the German trade marks “GL” and “GR” for vehicle radio remote controls.

While a trade mark dispute in the context of radio control technology may not sound particularly appealing, what makes the story interesting is that the two parties to the dispute were long standing business partners whose relationship was terminated a few years back. They were in a licencing and distribution agreement under which one party was to distribute the products made by the other party.

As their business relationship ended in 2014, the distributor, Abitron GmbH, decided to register the trade marks “GL” and “GR” in Germany, knowing that it was the normal trade mark used by the manufacturer, Hetronic, for the sale of some of its products. Fast forward to the year 2020 and Hetronic decided to file trade mark applications for “GL” and “GR” in Germany. As one would expect, Abitron brought an action for cancellation of Hetronic’s trade marks for being identical to their own.

The German Court dismissed Abitron’s argument, stating that their claimed prior right rests on a trade mark which was registered in bad faith: at the time of filing the application in 2015 they knew, as Hetronic’s former distributor in Germany, that the “GL” and “GR” were used by them and should therefore be aware of Hetronic’s intention to use these signs. The fact that Abitron intended to use the trade marks it had obtained did not preclude the existence of bad faith in the application.

This is only one chapter of the feud between Hetronic and Abitron which has been going on for years, ever since their business relationship came to an end in 2014. A similar case is to be heard by the EUIPO, the EU’s Trade Mark office, and last summer Hetronic won a case in US Federal Court against Abitron for trade mark infringement.