European IP Helpdesk

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Bulletin No. 3 Trademark

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From the outset, this question may seem arbitrary, even a bit forced perhaps. After all, how does a card game relate to a diet programme or to a language learning method, let alone to workout classes? However, there is not much suspense here as the answer is connected to trademark law.

When talking to friends, seeing ads or going to sports classes, one thing is noticeable.Why is it possible to play Cards Against Humanity with a deck of cards labelled under a different name? Why can countless sports centres offer Bodypump or Zumba 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?

Generally speaking, there are 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?

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 kill creativity and innovation as all ideas that the human brain can craft could then become proprietary. As a result, ideas and methods 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, an innovative technical solution itself could be protected by patents or utility models to make an idea work. Another example are the books from the series A Song of Ice and Fire, better known as the books that the hit TV series Game of Thrones is based on. These are all protected by copyright, 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 what is the issue at hand? Even if something bearing high commercial potential is created, it remains outside

of the realm of intellectual property protection as such. A diet programme is “just” a method based on eating less, eating different and 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 they are reproduced properly. A language learning method is simply a way of teaching how to listen, pronounce, and write. None of those aspects are protectable by intellectual property rights or else we would need an IP Police checking every move (“you can’t jump and kick in that direction, that move is protected”), every word, and all the game nights with friends.

So what can be done when a company develops something different and valuable and yet intellectual property does not grant exclusivity over the diet plan, the workout routine, the fun card game rules, or the intricate language learning experience that took years to create? This is where trademarks come into play. Hence, in the following we‘ll turn to a bunch of key questions in this regard.

Cannot protect your company’s new weightlifting, jumping jacks, high-intensity workout programme from competitors and copycats? This is fine. Let them offer very similar classes. Just make sure to call yours Bodypump, protect the name as a trademark, offer Bodypump® certification to trainers around the

What do Zumba, Bodypump, Weight Watchers, Cards Against Humanity and the Assimil method all have in common?

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 company’s ideas, but not from the 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. This is not certain with other classes. Such is the power of a good trademark strategy.

Cannot secure exclusive rights over the progressive, intuitive, two-phase language-learning technique your company 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. The same is truefor 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: your company designs 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 a Creative Commons Licence). However, build your own image as an irreverent, yet hilarious game creator, call your game Cards Against Humanity to call back to that “horrible people” vibe, trademark it and thus make sure that customers remember which horrible game they played “at that party that night” and that they tell their friends. Zumba Fitness, Bodypump, Weight Watchers, Cards Against Humanity and the Assimil method are all European Union trademarksand most of them are also registered trademarks 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 these cases, trademarks are a crucial element to commercial success. If you cannot protect what you sell, just make sure to 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 in order to compensate the lack of IP protection.

So for all the people out there who create games, sports routines or teaching methods for a living (or just for fun) remember that trademarks can be used as a lever when the time comes to commercialise! And when in doubt, just know the European IP Helpdesk is here to answer your questions.

This article was first published on our blog IP Sentinelhead over and find more interesting pieces on current topics from the world of IP.