How to Protect a Game Idea: What Works and What Does Not

A bare game idea cannot be protected by any right we know of, because copyright, trademark and design law all attach to something concrete and patents require a technical invention. What you can protect is the written form, art, code, name and design that come out of the idea, and a confidentiality agreement can keep the idea itself out of circulation while it remains secret.

The statutes below are German, because this site is run from Germany. Other countries differ.

What can be protected?

What you have	Right	Requirement	Duration
Bare idea, genre, concept	None
Rulebook or design document as text	Copyright	Personal intellectual creation (§ 2(2) UrhG)	70 years after the author's death (§ 64 UrhG)
Art, music, story, characters	Copyright	Personal intellectual creation	70 years after the author's death
Code	Copyright in programs	Author's own intellectual creation (§ 69a(3) UrhG)	70 years after the author's death
Name, logo	Trademark, work title	Registration or market recognition (§ 4 MarkenG); titles of works (§ 5 MarkenG)	10 years from filing, renewable (§ 47 MarkenG)
Appearance of a product, such as a board, pieces, graphic symbols	Registered design	See below	Up to 25 years from filing (§ 27 DesignG)
Technical solution	Patent, utility model	Technical invention, new and inventive	See patent page
Anything kept confidential	Trade secret, contract	Secrecy and reasonable measures	As long as it stays secret

Why is the idea itself not protected?

Copyright protects works, and § 2(2) UrhG requires a personal intellectual creation. The Federal Court of Justice said in 1961 that game inventions as such have no copyright protection (I ZR 24/60). The Mannheim Regional Court held in 2008 that the idea of a dice game is not protectable as such (7 O 240/07).

The written form is different. Rules set down in writing can be protected, though Mannheim held that plain instructions to the players are not enough and pointed to something like a creative story as what can go beyond them. A paper for the German game authors' association argues that a finished, original game flow can be protected through its rules. A concrete and original game therefore stands better than a one-line pitch, but that does not make the idea protected, and the result in court is open. The copyright page has the detail.

Copyright arises without registration in Germany, since § 2 UrhG makes protection depend on the creation and not on a filing. Keep dated drafts so you can show what you made and when. They are evidence and do not create a right.

Can you patent a game idea?

Only a technical invention qualifies. § 1(3) no. 3 PatG and § 1(2) no. 3 GebrMG exclude rules for games as such. If you do have a technical solution, timing matters: under § 3(1) PatG anything made public before the relevant date counts as prior art, so an early public demo can damage your own application.

How do you protect a name?

Check and register the name before you announce it widely. Under § 4 MarkenG registration is the most direct route, since use alone only protects you once the market recognises the sign. A registration lasts ten years from filing and can be renewed (§ 47 MarkenG). The Mannheim court accepted that game names can be work titles under § 5 MarkenG, but it held that using a game's name as a heading in a reference work on dice games was not use as a title. A title right therefore reaches less far than it may seem.

What can a registered design cover?

§ 1 DesignG protects the appearance of a product, and product includes graphic symbols, typefaces and packaging. It also says that a computer program is not a product. A board, pieces or a box can be registered, and so can graphic symbols. The way a game plays cannot.

How do you keep an idea confidential?

A signed confidentiality agreement is the practical tool when you show an idea to a publisher, a freelancer or a partner. Under § 2 no. 1 GeschGehG information counts as a trade secret only if it is not generally known, has value because of that, is subject to reasonable confidentiality measures, and there is a legitimate interest in keeping it secret. Without such measures you have no trade secret.

There are limits. Once a game is public, § 3(1) no. 2 GeschGehG allows others to observe, study and test it, as long as no duty restricts them. Publishers may also refuse to sign, so the agreement cannot be taken for granted.

What about competitors who imitate you?

§ 4 no. 3 UWG can help where a competitor offers an imitation and avoidably deceives buyers about the origin, unfairly exploits your reputation, or obtained the necessary knowledge dishonestly. It is a claim against a specific kind of conduct and not a right in the idea. Whether it fits your case is a question for a lawyer.

What is the realistic order?

1. Keep the idea confidential while it is only an idea, and use agreements when you share it.
2. Turn it into something concrete: a rulebook, a prototype, your own art and code.
3. Keep dated versions of that work.
4. Check whether a real technical solution exists before you show anything publicly.
5. Check and register the name before the announcement.
6. Clarify in writing who owns the work of contractors and contributors.