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Board Game Legal & Regulatory

Madhumita Mani
Switzerland
Dubendorf
Zurich
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publisher
Your design process might have worked wonders for your board game and you know that you would like to take its publishing one step further. Here is where you come to the crossroad of a crucial element to publish your board game: The Legal and Regulatory Phase. No matter what you choose to publish in life, may it be a product, a song, an advertisement, a food item, or a board game as in this case, the legal aspects need to be taken into consideration before anything else. And why do you need to do it? To extensively secure and protect your board game from IP violation, so that there is no scope for legal trouble in the future. Your game could be top-selling and the best in the market, but all you need is one misfortunate event to bring everything you’ve created tumbling down. You need your game to be flawless, and to do this, abiding by the regulatory norms is a must. Do whatever it takes, and do it the legitimate way!


The legal and regulatory aspects are combined together as a part of this phase as they are similar in nature, fall into the same boat, and are easier to deal with when pieced together. This phase is characterized by three important parts: General confidentiality agreement or contracts, intellectual property rights, and certifications i.e. toy safety.


The NDA (non-disclosure agreement) is a preliminary step to be established before the contract. When it comes to the NDA and contracts, if you are part of a big and renowned establishment, this aspect is not a cause of worry as we assume it would be in place by default. But if this is your first game or the first time that you are trying to create something of your own, the NDA or confidentiality agreements are key, as they secure your ideas and protect the development of your product. For this, you need to keep in mind the levels of confidentiality that you share with the people who are involved in developing your board game, such as the partners, illustrators, designers, manufacturers, or literally anyone who provides some sort of input or contribution in creating the game. Another aspect to consider is under which country and what law, would the NDA for your board game be covered. In any case, a generic and simple NDA can harm no one, and can simply involve anyone who partakes in the development of your board game, even if there are a couple of designers instead of one who you might choose to explore during the design process. Ultimately, the NDA works both ways and protects the interests of both the parties involved, i.e. the person providing any kind of service, as well as the owner.


The contract comes into place when there is a tangible deliverable that has been finalized and agreed upon by the parties involved. The basic requirements to have in place are the predetermined and well-defined terms and conditions, a standard template to put the right information in, what exactly the deliverable(s) are, the quantity of the game components like the cards, tokens, tiles, or the game box as a whole that needs to be manufactured, and the designs of every component. Most importantly the quality aspect of the game plays a very predominant role when it comes to manufacturing. The element of human error is very probable and cannot be ignored while publishing any kind of product. At times, some game components might be missed out on, might be fewer in number, or might be faulty. For example, a set of cards could be missing, the die could be faulty, and the tokens could be less in number. This enforces an additional cost on the publisher due to carelessness. Overhead costs like shipping to another country are also considered in this process, which need to be looked into if there is some flaw inside the board game box. Quality checks need to be done so that there are no complaints and the manufacturer can adhere to the quality parameters. A contract thus ensures these quality checks, ownership, and responsibility, so that when a situation like this pops up in the future, you know what the next step would be as per the rules laid down and agreed to. If you have any assembly instructions, they have to be clearly defined as to what needs to be kept first and what next, so that a reasonable estimate can be deduced for the same by the manufacturer.


When it comes to liabilities, quality issues can always shoot up, in spite of you taking care and monitoring everything during the manufacturing process of the game. In such a situation, it needs to be clearly defined in the contract, as to who should be held responsible, and who pays for the damage/loss. For example, if you ship the game and the board itself is missing in the box, how does one fix the issue? Does the manufacturer give you extra copies of the board as a backup or do they immediately provide it when needed? If there are missing items for one or two games, it is a trifle. But for hundreds of games, how does one cover such significant costs? Thus, a contract with these details helps you affirm a smooth process in such scenarios and the parties involved know how serious and professional they have got to be in their deliveries. In any kind of engagement, the interests of both parties are to be protected. In terms of the fees and prices, deliverables, time of delivery, the process of delivery, and the dependencies, everything needs to be covered and duly listed in a requirements document with extensive detailing, for ease of the process. The files/documents that you have created for the deliverables, should be stored in a repository for security purposes, or for references and tweaks later during the manufacturing process. Keeping it clean, simple, clear, and contractual in nature is important. The contract should also be written in such a way that safe transfer of documents is ensured, that all parties handle the files securely as it is your intellectual property.


There are two dimensions with respect to intellectual property rights. The first is to protect your ideas and interests so that no one else can duplicate the same name, same idea, same design, same logo, and so on. People recreate ideas that are already existing with their own touch and modifications so that it does not feel exactly similar to the original idea. To secure you from such situations, it is good to have your IP protected. It protects your brand as well if you choose to have expansions, versions, or a series of games with the same name. For this, you could trademark at least the name of the game, optionally the designs/artwork if you feel it is a must and is an important element for your game, which cannot be let loose into someone else’s grasp. The second aspect is to protect the rulebook from copyright violations. When you have finally completed writing the rule book, it is vital to protect the gameplay as it is evidently unique in a way and you wouldn’t want anyone to copy it. There is also the aspect of protection from claims wherein, for example, you create a game named XYZ and at the same time, someone else also creates the same game XYZ. In this scenario, you do not want to get into any legal hassles with another party. People from other countries can duplicate the game with cheaper, lower-quality versions and sell at lower prices. If you then plan to sell via Amazon, the commercial aspect then becomes a problem with a duplicate in the market. Many argue over the fact that whoever creates the idea in the first place, becomes the rightful owner by default. We suggest making sure you have the required paperwork, trademarks, and copyrights to complement your claims, in order to secure you from any sort of legal tussles. You do not need to worry as these protections are normally valid internationally. All you need to do is reach out to a good IP protection lawyer wherever you are, and get your paperwork in place. If you choose to not go through the entire process for securing your game, you can keep it simple as well by just protecting the name of the game and the rulebook. It wholly depends on what your requirements are at the end of the day.


The product certification is a very important detail that most people tend to forget about or ignore. This certification involves the toy safety norms that are crucial in protecting you and your game from any negative consequences. It is more of an international regulatory requirement than legal action. It is distinguished with a “CE” mark found at the back of any product with international standards. When you get the CE certification, the equivalent US and most parts of the Indian certification (BIS) are also taken care of. Most companies highly focus on the CE itself as it is a universally accepted norm. I bet you are buzzing with confusion as to when exactly you should apply for your toy safety certification? We have got you covered! When you start making your game prototype (next phase), it should include all the final game components. You need to confirm that no more tweaks and changes have to be made. You can then ask the manufacturer for a few extra copies of the prototype so that you can carry out the toy safety test. Essentially, the manufacturer should help you out with this. Usually, the printed components are considered as “one item” during the certification process, as they are made of paper or cardboard, and are quite similar with the same ink, characteristics, and material. But when it comes to the wood or plastic components, you test them per component and per color. For example, you have a cube and cylinder of five colors each, which makes it a total of ten components. These ten components are ten “items” that need to be tested individually as they are distinguished in nature. This makes it an expensive affair during testing. Thus, it is important that during the design phase, you also consider how many components and colors you would like to have and keep them consistent and perfect logistically. At the back of your mind, you need to remember the additional costs adding up due to variety. So if there is absolutely no need for a different color, just discard the idea of it.


There are internationally recognized agencies that are based in each country or the country of manufacturing that can draw up the toy safety certification process for you. They calculate per item so the printed components go as one item and for wooden components, it is valued as separate items per color. Once the testing is done, they produce a test report with different sets of information like the toxicity, chemical used, chemical levels, etc for all the game components. There are some supplementary documents that you need to then create on your own that cover the aspect of declaration and test results. Once you have completed this self-certification process, you are entitled to use the CE mark on your board game box. But if you are asking the question that most people ask, why is toy safety really done and what purpose does it serve? Many people don’t know the security that comes with a toy safety certification and realize its value later. The toy safety certification assures your customers of the age group that can play the game. For example, the kind of components that are in the game can be used by 6+ages or 10+ages, whatever is the age that your game can cater to. A frequent misconception made by most people is that toy safety testing needs to be done only if the game caters to children or a smaller age group. Truth be told, any and every game requires testing and a toy safety certification. Imagine an unforeseen situation where someone consumes a component by accident and you haven’t done your toy safety process, it will lead to legal suits if the person suffers from serious consequences because of the elements that make the component. The CE mark authenticates your game when it comes to safety. It gives a guarantee to the customer that you are taking a risk-free approach and all your components are safe. It also affirms families that children above a certain age group can play the game at ease.


A very well explained, detailed podcast that we referred to, is called the “CE Marking and Board Games with Glenn Ford” through the Board Game Design Lab (BGDL) website, for the legal and regulatory phase during the creation of our board game Ettana. It helped us understand deeper into all the CE certification aspects and can serve as a reference for any beginner who wants a smooth and easygoing discernment of the certification process. Once all of the legal and regulatory processes are done, you might want to consider sticking to the same manufacturer in order to avoid any further costs. If you choose to go for another manufacturer after a while, they may use different materials or have different processes and sourcing that could cost higher than before. Make sure you are affirmative about the kind of partnerships you want to have and with someone credible who can assure you of superior quality in all their services. Thinking ahead, thinking long-term, and foreseeing what you need in the future is something you might want to get habituated to. Just assuring your customers that you follow all the basic requirements and safety regulations, as well as legal norms that are needed for any product, gives people the mental satisfaction to play the game with relief and without bothering about any repercussions. There is never any harm in adhering to legal norms, it is always better to be safe than sorry. These are the criteria that characterize this phase- a sense of proficiency and safety to all customers, which ultimately works wonders for you as it increases the overall level of trust that people have in your board game.


Stay tuned to our blogs to check out the next step on this rollercoaster on how to publish your own board game!
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