Coming soon: new IP registration for electronic games in Brazil

Coming soon: new IP registration for electronic games in Brazil

A new law has entered into force in Brazil that introduces IP protection for electronic games encompassing both their programming and the relevant hardware device. But brand owners need further clarification from the BPTO before they can begin filing applications, explains Ana Carolina Lee Barbosa Del Bianco, a partner at Dannemann Siemsen, in this guest piece.

On 6 May 2024, the Legal Framework for the Electronic Games Industry in Brazil (Law 14.852/24) came into force. Established as a result of Bill 2976/21, presented by federal deputy Kim Kataguiri, the new law establishes the legal framework for the electronic games industry and amends, among other things, the Industrial Property Law (Law 9279/96) by inserting in Article 2 the granting of registration for electronic games as a form of IP rights protection.

The legal framework considers an electronic game to be both:

• a computer program, already defined in the Brazilian Software Law (Law 9609/98), for use as a cell phone application or web page, video game console game or virtual reality game, accessed via download or through streaming; and
• the physical device used to play the game (eg, consoles and accessories).

Electronic games of chance (eg, poker games, betting games and any other games that involve tangible or intangible prizes) do not fall within the scope of the framework.

This new registration for electronic games is due be regulated by the Brazilian Patent and Trademark Office (BPTO). Yet, considering the protection already provided for in the Software Law, as well as the possibility of patent protection for games hardware (eg, consoles, devices and accessories), brand owners must wait to see what the role of the new register to be regulated by the BPTO will be.

Existing protections for electronic games

Electronic games can already be protected in different ways in Brazil, including through trademark registration, copyrights, patents, industrial designs and software registrations.

Trademarks

Game titles and character names, for example, can be registered as trademarks with the BPTO, which will guarantee the owner the right to exclusive use of the signs in Brazilian territory to identify the products/services of interest, as well as the right to prevent third parties from using similar or identical trademarks to identify identical or similar products/services.

Copyright

Music, character designs, scenarios and stories, among others, are protected by copyright, which arises from the creation of the work and is independent of registration. That said, registration can be requested before one of the competent public bodies, to give the author more security. This makes it easier to prove the authorship of the work, which can be useful as a basis for a copyright infringement lawsuit, for example.

That said, it is important to note that, in Brazil, game rules are not subject to copyright protection, nor are ideas, until they are fixed in some medium, whether tangible or intangible.

Thus, a game built with a similar story and the same rules as another pre-existing game will not be considered to infringe copyright if it has used different elements (eg, different characters, settings or music).

Patents

The hardware element of electronic games (eg, the console and innovative accessories and mechanisms) can be patented, provided that they meet the requirements of novelty, inventive step and industrial application, and do not fall foul of legal prohibitions.

In Brazil, game rules are not patentable either. Thus, in general, games themselves are not patented, as most of the time they do not meet the necessary requirements. But the number of patents relating to elements of games, usually in the hardware area, has grown.

Industrial designs

Innovative ornamental aspects of consoles and controllers, for example, can also be protected by industrial design registration.

Software

Finally, games software can be the subject of a specific registration provided for in the aforementioned Software Law and granted by the BPTO. This registration is similar to copyright for being merely declaratory (ie, the right of the owner is already born with the creation of the program, and is independent of the registration). Therefore, it is used primarily to facilitate proof of authorship, ensuring greater legal certainty for owners, especially when the software is not patentable because it does not meet any of the legal requirements.

What to expect from the new e-games registration

The new Legal Framework for the Electronic Games Industry in Brazil does not require prior state authorisation for the exploitation and development of electronic games, and it is only up to the state to carry out age classification for games.

Since the recent amendment to the Industrial Property Law, we are now awaiting the appropriate regulations to see what the characteristics of the new specific IP registration for electronic games will be.

We hope that the registration will facilitate the protection of games as a whole, thereby increasing demand from owners, so as to guarantee greater legal certainty for everyone and further encourage this growing industry.

Indeed, there could be great demand for this type of protection. According to a survey carried out in 2024 by Pesquisa Game Brasil, 85.4% of Brazilian consumers consider electronic games to be one of their main forms of entertainment, whether accessed via specific consoles or via smartphones and computers. Meanwhile, the electronic games industry is estimated to generate R$13 billion annually in Brazil (approximately US$2.51 billion), with games consumed by people of practically all age groups – thereby representing a fertile field for new brands, jobs and professions.

The new Legal Framework for the Electronic Games Industry in Brazil – which has two main objectives: to establish principles and guidelines for the use of electronic games; and to present measures to foster the business environment and increase the supply of capital for investment in innovative entrepreneurship – therefore addresses a subject that is of interest to a large part of the population, as well as international companies eyeing the Brazilian market.

*This article was originally published in WTR – World Trademark Review – https://www.worldtrademarkreview.com