For our video game clients, protecting intellectual property is an important part of their business.   Intellectual property protection for a video game commonly comes in the form of trademark and copyright but may also involve patents and trade secrets

Trademarks can protect the titles and logos associated with a game.  Without a registered trademark, another studio could register a trademark that is confusingly similar to your existing game, thereby creating confusion, negatively impacting your ability to enforce trademark rights and potentially the complete loss of all trademark rights.

Copyright can protect game code, artwork, music and characters.  A copyright registration could be obtained on a particular character used in a game to prevent third parties from creating and selling plush toys based on the character.  

Patents can protect new and innovative hardware, systems, technical solutions, innovative game play or design elements and technical innovations such as networking or database design.  

Trade secrets can protect customer mailing lists, pricing information, publisher contracts, developer contracts, in-house development tools, and terms and conditions of any agreement the studio enters into.  Note that the enforcement of a trade secrets requires that a confidentiality agreement be put in place.

The following chart provides a helpful overview of intellectual property protection options:

We recommend that studios become familiar with the range of intellectual property protections available and to prepare an intellectual property strategy for both the studio and its games.  

Many founders I speak with are concerned about where their startup is incorporated and how this could impact fundraising opportunities in the United States.  In reality, this concern is unfounded.

Any sophisticated investor considers the product/service, team, market potential and other commercialization factors before, if at all, considering where a startup is incorporated.  In some circumstances, an investor may request that the startup alter its jurisdiction of incorporation but whether or not they proceed with the investment is determined 90% by quality of the company over jurisdiction of incorporation.  As relayed to me by Canadian founders, “if an investor passes because you’re a Canadian company, that’s not the real reason for passing“.

Where an investor requires your startup to be incorporated in the U.S. there is a simple process for creating this structure that I discussed in a previous blog post – The Canadian-U.S. Swap: Moving an Early-Stage Startup to the U.S.

Canadian founders should focus on building a compelling product/service and not waste energy worrying about minutia of incorporation.  Sell investors on your company and any issues concerning where your company is incorporated can be worked out between your legal counsel and investors.