TYGlobe

I. What Is a Board Game?

Zhuoyou, the abbreviated form of the Chinese expression "desktop game", originates from the English term "Board Game". It is a general term for various types of games that require the use of game cards, game boards and game props (e.g. chess pieces, dice, tokens, etc.) for participation, and involve multiple players playing face-to-face in a physical space. Widely known games such as *Sanguosha* (Legends of the Three Kingdoms) and Monopoly fall into the category of board games. In a broad sense, chess and poker are also covered by the definition of board games.

Modern board games originated in Germany in the 20th century and gained popularity in Europe and the United States. With a development history of several decades, they boast a vast diversity of categories and forms, with content covering multiple fields including warfare, trade, culture, art, architecture and history. It was not until the beginning of this century that various types of board games entered the Chinese market successively. However, they have not yet achieved development that breaks through niche boundaries to date, and remain a form of recreation only for a very small group of niche players.

II. Legal Protection of Board Games

There has long been an intractable, long-standing problem in the board game industry: how to crack down on piracy and prevent original works from being plagiarized and unfairly counterfeited by others. The reason is that the core of the market competitiveness of board game products, namely "board game rules, board game mechanisms and board game creativity", are highly abstract. Courts usually hold that such contents fall within the realm of ideas and do not constitute expressions, hence they cannot be protected by the Copyright Law of China. This leaves loopholes for pirates and counterfeit sellers to exploit: they often reproduce and distribute relevant products without permission, rapidly seize the market through low-price sales and other means, and illegitimately obtain the market benefits that shall originally be enjoyed by original creators (genuine merchandise operators). In response to this issue, there are also some suboptimal solutions applicable to the protection of board game products in judicial practice. The author hereby attempts to provide examples of such solutions, sort them out and conduct a brief analysis thereon.

(I) Copyright Law

In judicial practice, board games may be determined by people's courts as written works or fine art works and thus granted copyright protection, and there have been a number of relevant judicial precedents already. For example, in the case of *Sanguosha* v. *Sanguo KILL* (later renamed *Jilue Sanguo*), the court held that each sentence and each passage of text on a single board game card is too simple to meet the originality threshold required by the Copyright Law of the People's Republic of China. However, given that the text on the cards is intended to explain the skills or functions of the corresponding cards, when a large number of cards are combined as a whole, they may be deemed as "game instructions" and protected as written works specified in the Copyright Law. Another example is the copyright ownership and infringement dispute case filed by Shanjiancheng Company against Huang Moumou. The plaintiff claimed that the packaging design pattern of its board game *Hai Ni Zai Xin Kou Nan Kai* constitutes a fine art work and it enjoys the copyright over the said work. The court affirmed that the defendant Huang Moumou had committed copyright infringement, and ordered the defendant to pay economic compensation to the plaintiff.

There is no significant controversy in both theory and practice regarding the deeming of patterns, pictures and packaging of board game products as works of fine art. However, there is a certain degree of controversy over deeming board game cards as written works. In addition, similar precedents are very few or almost impossible to retrieve. That is to say, not all card-based board games are sufficient to constitute written works, which requires careful and prudent assessment. It is worth noting that following the amendment of the Copyright Law of China in 2020, "other intellectual achievements that conform to the characteristics of works" was added as a new category of works. As for whether the entirety of a board game product can be deemed by courts as other intellectual achievements conforming to the characteristics of works, it still requires continuous exploration and development amid industry changes and judicial practice, and such possibility is not completely ruled out at the very least.

(II) Trademark Law

In the dispute over trademark right infringement filed by Yoka Games Company against Huang Moumou and Pei Moumou, the court held that the card products sold by the defendants marked with "Sanguosha Huangling Longsuo" have the traditional Chinese characters "Sanguosha" prominently used in multiple positions on the packaging boxes. Taking the general attention of the relevant public as the judgment criterion, the aforesaid sign is almost visually indistinguishable from the plaintiff's Registered Trademark No. 6592067 "Sanguosha", which is likely to cause confusion among the relevant public. Therefore, the defendants have committed trademark right infringement and shall be liable for compensation.

Registering trademarks for board game product names and filing infringement lawsuits can also achieve the effect of cracking down on the piracy market. However, this approach has certain limitations. On the one hand, trademark registration is subject to various conditional requirements; on the other hand, the element of "causing confusion among the relevant public" must be satisfied for trademark infringement to be established. Therefore, if some shrewd pirates and distributors adopt strategies such as modifying or adjusting the names of board game products and reskinning or replacing various elements, this method will face enormous difficulties, and even the court may hold that no infringement is constituted.

(III) Anti-Unfair Competition Law

For the infringing act of "re-skinning" counterfeiting committed by pirates, it may be claimed that such act constitutes unfair competition and violates the relevant provisions of Article 2 and Item 1 of Article 6 of the Anti-Unfair Competition Law of the People's Republic of China. Namely, the "re-skinning" counterfeiting act violates commercial morality and the principles of fairness and good faith, and also falls under the circumstance of unauthorized use of identifiers identical or similar to the name, packaging and decoration of another person's commodity with certain influence. In the case of Asmodee Co., Ltd. v. Baiyou Co., Ltd. and Danying Co., Ltd. over an unfair competition dispute, the court ruled that the defendant's act of selling the "re-skinned" board game *Gem Merchant* constituted infringement upon the plaintiff's rights and interests related to its marketed board game *Splendor*, which is deemed as unfair competition, and the defendant shall compensate the plaintiff RMB 370,000 for economic losses.

(IV) Other Methods

From the perspective of patent infringement and trade secret infringement, protection can theoretically also be granted to the props of board game products and the research and development (R&D) activities of such products. In practice, however, relevant judicial decisions in this industry are extremely rare and barely existent at present. Admittedly, many board game agents and distributors have filed numerous applications for design patents and utility model patents for their own board game products. Nevertheless, the author remains skeptical about the actual effects they can ultimately deliver, as neither "new design" nor "technical solution" constitutes the core of the market competitiveness of a board game product. Even a moderately shrewd pirate can circumvent patent infringement by making slight modifications and adjustments.

III. Conclusion

Board games are actually products that require massive capital and intellectual labor input (including repeated testing, polishing and debugging), and are refined through high-level abstraction and generalization of "creativity" and "gameplay". They shall be deemed as concrete expressions of ideas. However, neither existing copyright protection (for written works and works of fine art), trademark right protection, nor anti-unfair competition protection seems to have touched the core part of the market competitiveness of board game products. The protection of "board game rules, board game mechanisms and board game creativity" may still be subject to further attempts and exploration in subsequent judicial practice.