Are computer games still a niche product, or have they entered the mainstream? The possibility of registering a trademark similar to an earlier mark turns on this issue.
Kalypso Media Group GmbH v EUIPO, Case T‑700/18 (judgment of the General Court of 10 October 2019)
The computer game industry is one of the fastest-growing sectors of the economy, in Poland as elsewhere. Dynamic growth carries the risk of disputes affecting various aspects of gaming.
A case recently reached the docket of the General Court (a division of the Court of Justice of the European Union) concerning the application for registration of an EU trademark for the word sign DUNGEONS by Kalypso Media Group GmbH. The application was opposed by Wizards of the Coast LLC, proprietor of the earlier EU word mark DUNGEONS & DRAGONS. The European Union Intellectual Property Office upheld the opposition and denied registration of DUNGEONS, finding that there was a likelihood of confusion with the earlier mark DUNGEONS & DRAGONS.
Kalypso appealed, and the case reached the General Court, which examined the risk of confusion with respect to trademarks from the gaming industry. In conducting this evaluation, the average level of attention of the average consumer for the relevant category of goods or services should be considered, and in practice this varies depending on the goods or services in question. In this case, the average level of attention of the average consumer of computer games was at issue.
How attentive is the average consumer of computer games?
In denying registration of DUNGEONS, EUIPO found that computer games are an everyday consumer item, treated by consumers as “disposable products” characterised by low value and high turnover. No longer confined to a narrow group of enthusiasts, computer games have become mainstream, with the customer circle extending to “all age groups, regardless of gender and specific knowledge of the gaming industry.” EUIPO thus concluded that the goods and services “were intended for the general public with at most an average level of attention.”
Kalypso challenged this assessment. In its view, the relevant public for computer games had a high level of attention: “On that market, there are hundreds, if not thousands, of games and computer games available simultaneously for which prices are high. The decision to buy those products, therefore, is based on the prior gathering of useful information, which shows that purchasing habits in relation to games and computer games differ from purchasing habits in relation to real everyday items. Consumers look for information on internet forums or other sources of information, online or offline, about which games or computer games to buy.” Kalypso also alleged that it is common in the gaming industry for “the names of games from different developers to differ only slightly, on the ground that certain subjects or topics or game styles are very popular and therefore frequently included in the names. Thus, the relevant audience is accustomed to paying attention to specific names in order to identify a product among the multitude of similar games, which entails that it displays a high level of attention.”
The General Court rejected Kalypso’s assertion of a high level of attention of the average consumer of computer games. The court found that computer games are directed not just to specialist consumers, but also to the general public. Thus for evaluating the likelihood of confusion, it should be assumed that the average consumer of computer games displays an average level of attentiveness. As the court pointed out, “the categories ‘games’ and ‘computer games’ cover a fairly large number of different goods, which are not luxury or niche products reserved for a limited number of people. On the contrary, those goods are available both online and on a self-service basis, they are widely promoted on different television channels, depending on the target age group, their price is relatively low and special skills or knowledge are not essential or required for their purchase.” Thus “computer games are easily accessible to all, including those without special knowledge.” They may be regarded as everyday consumer items because they have “gone mainstream.” This is also reflected in their availability and distribution—“special skills or knowledge are not indispensable or required in order to purchase them.” Consumers with little knowledge of games might buy them as gifts, for example. Consequently, the court concluded, although “part of the relevant public shows a high level of attention, … games and computer games are also intended for consumers who show a level of attention that is ‘average at best.’”
This judgment raises again an important issue. The model for the average consumer of goods or services must be established on a case-by-case basis. The evolving commercial reality must be borne in mind, along with changes in consumer habits and the increasingly widespread popularity of certain goods. This ruling by the General Court captures this change in attitude toward computer games, which were originally regarded as a niche product, targeted to a discerning group of users, but now aimed at the broad, mainstream public. Along with the spreading popularity of computer games, the model of the average consumer of gaming goods and services has changed, and this must be reflected in the analysis of the likelihood of confusion between products.
Dr Monika A. Górska, attorney-at-law, Intellectual Property practice, Wardyński & Partners