From the outset, you may find this question arbitrary, a bit forced perhaps – and you wouldn’t be wrong! After all, how does a card game relate to a diet programme or to a language learning method, let alone to workout classes? I’m afraid there is not much suspense here (after all, this is an IP blog) – the answer is connected to trade mark law.
But let me explain why we decided to dedicate a blog post to this topic, and go back in time a little bit. Over the course of the past few months, talking to friends, seeing ads here and there or going to sports classes, I sometimes wondered – why do my friends say they go to a “Fitness Dance” class when they are basically doing Zumba? Why did I recently play Cards Against Humanity with a deck of cards labelled under a different name? Why can countless sports centres offer Bodypump classes, but not all of them advertise it this way? Why can dozens of dieting companies offer meals and weight loss programmes that seem to copy each other indefinitely?
At the same time, in recent months, several of our Helpline users raised questions which, unknowingly, seemed to echo those interrogations. Generally speaking, we noticed many uncertainties as to what intellectual property can or cannot protect, through questions such as – how to protect a dance class programme? How to protect a card game? How to obtain exclusive rights over the contents of an innovative learning course or a dieting programme?
Well – the quick answer is that you cannot obtain any exclusive rights for these, taken as such. Indeed, intellectual property never protects ideas, methods, game rules – allowing so would essentially kill creativity and innovation as all ideas that the human brain can craft could then become proprietary. As a result, ideas and methods as such always remain free for everyone to use.
This being said, once ideas “come to life” in a specific way, their realisation can in certain cases be protected via intellectual property rights. For instance, should you figure out an innovative technical solution to make an idea work, then this solution itself could be protected by patents or utility models. Another example – the books from the series A Song of Ice and Fire are all protected by copyright (for the one person asking in the audience: these are the Game of Thrones books) – but this cannot, should not, and most definitely will not prevent countless aspirant writers to keep writing heroic fantasy stories about throne wars and dragons.
So which issue are we talking about here? Well – it may in fact happen that you create something bearing high commercial potential – and yet, that this valuable asset remains as such outside of the realm of intellectual property protection. A diet programme is “just” a method based on eating less, eating different, counting calories. Rights such as copyright or patent will not protect it in any way. A sports class is essentially a series of moves taught by a coach who ensures that you reproduce them properly. A language learning method is simply a way of teaching you how to listen, pronounce, write. None of those aspects are protectable by intellectual property rights – or else we would need an IP Police checking our every move (“you can’t jump and kick in that direction, that move is protected”), our every word, and all our game nights with friends.
So what can you do when you develop something different and valuable – and yet intellectual property refuses to grant you the exclusivity that you think you deserve – over the diet plan, the workout routine, the fun card game rules, or the intricate language learning experience that you spent years to create? This is where trade marks come into play. Examples?
- Can’t protect your extremely cool weightlifting, jumping jacks, high-intensity workout programme from competitors and copycats? Fine – let them offer very similar classes. Just make sure you call yours Bodypump, protect the name as a trade mark, offer Bodypump® certification to trainers around the globe, sell related merchandising, and allow selected licensed gyms to say that they provide Bodypump as a commercial argument. Others will provide “high intensity workouts” or “fitness plus” classes. They may benefit from your ideas, but not from your reputation on the market. The same with Zumba for all the reggaeton, beach dancing aficionados out there. Unlicensed Zumba trainers? They will provide classes called “fitness dance” or any other name of their choice – which will not attract so many new people. Because if you like Zumba and you go for a Zumba Fitness® class, you are sure of what you get. Other classes? Not so sure. Such is the power of a good trade mark strategy.
- Can’t secure exclusive rights over the progressive, intuitive, two-phase language-learning technique you pioneered? Let potential competitors and third party publishers release language learning methods very similar to yours. Just ensure you call yours Assimil and base your commercial strategy on that branding. Your reputation will do the rest. Same for Weight Watchers – perhaps the most famous dieting company out there. Nothing about Weight Watchers’ method can be protected by intellectual property rights – but its name can. And sometimes, protecting the name is enough.
- A last one: say that you design a “game for horrible people” where players create funny sentences based on the cards that they have in their hands. The game rules as such cannot be protected (interestingly: the cards’ designs are in this case original enough to be copyrighted, and are made available under Creative Commons licence – in case you are having a slow day at work, time to make your own deck!). On the other hand, build your own image as an irreverent, yet hilarious game creator (just have a look at the legal notice at the bottom of their website), call your game Cards Against Humanity to call back to that “horrible people” vibe, trade mark it – and thus make sure that customers remember which horrible game they played “at that party that night”. And that they tell their friends. There you have it!
Zumba Fitness, Bodypump, Weight Watchers, Cards Against Humanity and the Assimil method are all European Union trade marks (have a look!) – most of them are also registered trade marks in other jurisdictions worldwide. Their owners (Zumba Fitness LLC, Les Mills International Ltd, Weight Watchers International Inc., Cards Against Humanity LLC, Assimil SAS) are a few of a number of highly successful businesses whose core assets – games, programmes, methods – are as such not protectable by intellectual property.
In such cases, trade marks are a crucial element to commercial success. If you cannot protect what you sell, just make sure you sell it in the most attractive package – and then protect the package, derive products and services from it, increase visibility, and in turn boost your reputation. This is what these companies have done – they have managed to build a strong image and reputation on the market – a strong link in customers’ minds between the products and services provided, and their own company - to compensate the lack of IP protection.
So for all our enquirers out there who create games, sports routines or teaching methods for a living (or just for fun) – remember that trade marks can be used as a lever when the time comes to commercialise! And in doubt, just know that we are here to answer your questions.