Are Your Newly Designed Sports Games Protectable Under Hong Kong Laws?

• Published date: 01 December 2020
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Patent, Trademark, Sport
• Law Firm: ONC Lawyers
• Author: ONC Lawyers

Introduction

The sports industry has been one of the fastest growing industries globally and new sports formats have been emerging and gaining popularity. In England, "The Hundred" is a game evolved from the traditional cricket in order to fit for a shorter version of it. "The Shoot-Out Tournament", a professional ranking snooker tournament, also shortens the traditional snooker game to 10 minutes per frame and introduced new rules to the game. Initiated in Australia, "Fast4 Tennis" varied the rules in traditional tennis to create a new form of the game. These new sports formats are actually works of innovation and creativity which may involve substantial investment and will bring about business opportunities, thus some important issues then arise - in particular, are newly designed sports protectable under the current framework of intellectual property law in Hong Kong?

What are the available options?

There are many forms of intellectual property rights, the most common ones being patents, trademarks and copyrights.

Patents protect inventions, that is products, substances, or processes which are new and inventive. To be eligible for the grant of a patent, there are four basic requirements under s.9A of the Patents Ordinance (Cap. 514), including the requirement that the innovation must not fall within one of the excluded categories in s.9A(2) of the Patents Ordinance. Pursuant to s.9A(2), "a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer" is not to be regarded as an invention for the purposes of a patentable invention. As a newly designed sports game is in essence a set of rules originated from the ideas of the game creator, it will likely fall within one of the excluded categories in the Patents Ordinance and thus would not be a patentable invention.

A trademark is a sign that distinguishes the product or service and trademarks are governed by the Trade Marks Ordinance (Cap. 559) in Hong Kong. A trade mark can typically be words, characters, designs or some form of indications and it must be capable of being represented graphically in order for it to be registered as a trademark. As such, a sports game in itself cannot be a trademark and falls out of the ambit of trademark protection as well.

The most relevant form of intellectual property rights which may be able to protect new sports games is likely copyright. Copyright is an automatic right arising from creation of a work which is...