The European Union Intellectual Property Office (EUIPO) held a webinar, as part of its weekly ‘Tuesday Webinars’ series, to analyze the situation of the esports phenomenon from the perspective of intellectual property in the context of an industry that is expected to be worth 1,860.2 million dollars by 2026 according to Antoine Aubert, Digital IP specialist at EUIPO, and in charge of moderating the meeting, which was attended by representatives of the Legal Department of Twitch, Ubisoft and PONS IP.

After the meeting, all the participants agreed on the special complexity of defining the business model of this incipient industry and establishing models for collaboration, licensing, and economic compensation to the holders of intellectual property rights (IP) from a perspective of legal responsibility, but also of economic and social sustainability. In addition, the meeting showed how the different players in the esports ecosystem address the challenge of managing adequate control over possible infringements arising from improper exploitation of both intellectual property and trademarks.

In relation to the definition of the esports ecosystem and monetization models, the International Legal Director of Twitch, Charles Slingsby, raised several key scenarios in which it is ‘fundamental’ for a platform to identify which intellectual property rights come into play, as well as an adequate management of licenses and economic compensation to holders such as the creators and distributors of video games, the organizers of competition events, the streamers of the competition, the teams and professional players themselves, the fans and, of course, the patrons and sponsors of the competitions.  Regarding the latter, Slingsby concluded that ‘Twitch’s main concern today is to define a sustainable and sustained business model over time between platforms, creators, players and sponsors derived from the aforementioned financial compensation for their IP rights’. 

In this context, Virginie Gringarten, Associate General Counsel at Ubisoft, added the current challenge of ‘developing a balanced compensation model between the different right holders in this complex and ever-changing esports framework’.

José Carlos Erdozain, Of Counsel of PONS IP, explained the need to distinguish between the video game content itself, protected by multiple intellectual property rights, and the video game ‘in the context of a competitive game, more conceived as a show than a game, or the recording of a video game, where it is complicated to establish limits from an intellectual property point of view, where other rights such as trademarks come into play, something that is essential to identify and protect in this context’. Erdozain also gave a comprehensive analysis of the multiple IP rights involved between the creators, the organizers, the streamers or broadcasters of the competition, the professional teams and players, as well as the individual players.

For Erdozain, video game developers are ‘the most important part of the esports context, playing a role similar to that of music creators, where it is essential to define a licensing model that is compatible with the strategic role of the broadcasting platforms where esports competitions take place’.

In this regard, Ubisoft’s Virginia Gringarten pointed out the complexity, also from a legal point of view, for a developer to make available the technical means to provide a ‘stable framework’ to the creators of the competitions so that ‘they can independently trademark and make available to the players the game with the specifications required by the online competition. In addition to intellectual property issues, it is a challenge for creators to ensure that PEGI specifications for both usage and viewing are met in the context of an open competition on third-party platforms’. 

Finally, the Of Counsel of PONS IP made an approach from the perspective of trademark rights and their role in the context of esports, pointing out with several graphic examples the relevance of non-conventional trademarks such as sound and multimedia trademarks.

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