The tabletop gaming industry is booming.
Fueled by renewed interest in analog entertainment, the global tabletop-games market continued to grow. One recent industry market study valued the worldwide tabletop market at approximately 12.7 billion euros in 2023. Major conventions reinforce the scale of the audience: GenCon (U.S.) drew more than 71,000 attendees in 2024, SPIEL Essen (Germany) reported 204,000 visitors in 2024, and the UK Games Expo reported more than 31,000 unique visitors in 2023. Kickstarter likewise reported that $220 million was pledged to successfully funded tabletop-game campaigns in 2024. [1, 2, 3, 4, 5]
Crowdfunding platforms like Kickstarter and Gamefound have helped thousands of independent creators bring games to market, with some projects raising millions of dollars before a single product ships. Behind the eye-catching artwork, rulebooks, and miniatures, however, lies a dense network of intellectual property assets, many of which are unregistered, unprotected, or poorly understood by their creators.
For attorneys advising creative professionals, investors, or businesses in the games or entertainment sector, the growth of crowdfunded board games offers both opportunity and risk. Copyrights, trademarks, trade dress, and even patents can play a central role in a game’s success or its legal unraveling. This article offers a practical overview of the intellectual property (IP) issues most commonly encountered in board game development and crowdfunding, with an emphasis on proactive strategies and common pitfalls.
The popular card game Exploding Kittens is a prime example of this success.
Created by game designer Elan Lee, illustrator Matthew Inman, and Shane Small, Exploding Kittens launched on Kickstarter on January 20, 2015, with an initial goal of $10,000. It ultimately raised $8,782,571 from 219,382 backers and became the most-backed Kickstarter project off all time at the time. [6]
The combination of strong consumer demand, accessible crowdfunding platforms, and relatively low barriers to entry has attracted independent creators and hobbyists alike. Many of these creators, however, are unaware of the legal implications of launching a game into the marketplace. Specifically, they often overlook the critical importance of identifying, protecting, and managing IP assets before a campaign goes live.
Trench Crusade, a recent entrant to the tabletop miniature gaming lexicon, incorporates all of the requisite IP elements in a manner that also makes use of changes in consumer preferences in gaming technology.
Developed by Factory Fortress Inc., Trench Crusade is a gothic miniatures wargame set in an alternate World War I timeline. Its Kickstarter campaign, which ran from October 29 through November 12, 2024, attracted 20,170 backers who pledged $3,331,943. The campaign offered physical miniatures as well as digital STL files that allowed qualifying backers to print miniatures using 3D printers. [7, 5]
As a starting point, attorneys who represent aspiring game designers as well as the entrepreneurs themselves should understand that IP almost always represents that most valuable component of any new game design, especially a design that is made public through a crowdfunding campaign well before it is available for purchase. Necessarily, these IP assets often should include copyrights, trademarks, trade dress, patents, trade secrets, domain names, and international considerations.Attorneys working with game developers, content creators, or licensees are sure to find these issues increasingly relevant as tabletop gaming continues its expansion.
Copyright primarily protects game images and text
Copyright law protects original works of authorship that are fixed in a tangible medium, such as written text, illustrations, and audiovisual materials. In the board game context, this may include rulebooks, card text, artwork, packaging, character backstories, and promotional materials. It does not, however, protect abstract ideas, systems, or gameplay mechanics. [8]
Game creators often misunderstand this distinction. For example, a game mechanic like “draw three cards and play one” is not protectable. However, the specific language used to describe that mechanic, or the narrative content surrounding it, may be eligible for protection, especially if that description is crafted in a creative manner. [8]
Even though copyright protection generally arises when original expression is fixed in a tangible medium, practical considerations argue heavily in favor of early registration of key gaming elements with the U.S. Copyright Office. For U.S. works, registration generally must occur before an infringement action may be filed in federal court, and timely registration affects eligibility for statutory damages and attorney’s fees. In practice, registration also strengthens a creator’s ability to document and enforce ownership. [9]
Trademarks are key to the successful branding of a new board game
Trademark law, governed in the U.S. by the Lanham Act (15 U.S.C. §§1051 et seq.), protects words, names, symbols, or designs used in commerce to identify and distinguish goods or services. Game titles, logos, slogans, and even recurring character names may all be eligible for trademark protection if they function as source identifiers. [12]
Creators planning to crowdfund a board game should conduct a clearance search prior to announcing their product or investing in manufacturing. A basic search of the United States Patent and Trademark Office’s (USPTO) current Trademark Search system is an essential starting point, but the USPTO recommends a broader clearance search that also considers common-law uses and other sources. If the mark is available, an intent-to-use (ITU) application may be filed with the USPTO before the game is released if the applicant has a bona fide intention to use the mark in commerce. [10, 11]
Trademarks, unlike copyrights, can be renewed indefinitely with continued use and maintenance. They are often among the most valuable assets associated with a successful game, especially when the brand extends to sequels, expansions, licensed merchandise, or media adaptations. [12]
Trade dress can be as important as trademarks to a successful game brand
Trade dress, a subset of trademark law, protects the overall visual appearance of a product or its packaging when that appearance functions as a source identifier. In the context of board games, trade dress might include distinctive box designs, color schemes, layouts, or visual motifs. Functionality bars protection; product-design trade dress requires acquired distinctiveness, while product packaging may in appropriate circumstances be inherently distinctive. [12]
Claims of trade dress infringement often require substantial evidentiary support, including marketing data, consumer surveys, and examples of consistent usage. For this reason, trade dress claims are less commonly pursued by independent creators, but they remain an important consideration in long-term brand development. [12]
Patents may provide additional protections
Although less frequently applicable, patent protection may be available for certain game components or innovations. Utility patent protection depends on satisfying the statutory requirements for patentable subject matter, novelty, non-obviousness, and disclosure. Design patents may protect new, original, and ornamental designs for articles of manufacture, which can include appropriate game components. [13]
Pursuing patent protection requires early planning. U.S. law provides a limited one-year grace period for certain inventor-originated public disclosures, but many foreign jurisdictions may not permit patenting after public disclosure. A crowdfunding launch can therefore have serious consequences for patent rights and should be discussed with registered patent counsel before technical details are made public. [13]
Board games even may generate protectable trade secrets
Trade secret law may protect information that has actual or potential independent economic value because it is not generally known and that is subject to reasonable efforts to maintain its secrecy. In game development, potentially protectable information might include internal design data, unreleased expansion plans, manufacturing information, or other confidential business information. [14]
Because trade secret protection depends on continued secrecy, creators must take reasonable steps to protect confidential materials prior to launch. Measures may include written non-disclosure agreements (NDA), access restrictions, and internal policies. Once particular information is publicly disclosed, trade secret protection for that information ordinarily cannot be maintained. [14]
Separately, creators should secure relevant domain names and social media handles prior to announcing a project publicly. Failing to do so can create brand confusion and can invite cybersquatting disputes. Federal law provides a cause of action for certain bad-faith domain name registrations, and ICANN’s Uniform Domain Name Dispute Resolution Policy provides administrative procedure for many trademark-based domain disputes. [15]
Determining who owns what and making a record of it
Another commonly overlooked issue involves ownership rights among co-creators. Game development is often collaborative, involving designers, illustrators, writers, and developers. Without written agreements specifying ownership, license terms, and revenue sharing, disputes can arise that complicate or derail commercial success.
A written collaboration agreement should address each party’s contributions and ownership interests, as well as procedures for decision-making, withdrawals, and disputes. Agreements with independent contractors should address copyright ownership expressly. Because a commissioned work qualifies as a statutory “work made for hire” only in specified circumstances, an express written assignment of applicable rights is often important rather than relying on a work-for-hire label alone. [16]
Kickstarter and other crowdfunding platforms do not substitute for IP registration or enforcement. Kickstarter states that creators retain ownership of their work, but creators remain responsible for protecting and enforcing their own rights. Accordingly, proactive registration, documentation, and IP management remain important before launch. [17]
International sales success is great unless the IP has not been protected
Finally, creators should consider international implications. IP rights are territorial, and a U.S. filing or registration does not itself create identical rights worldwide. Trademark and patent rules vary by jurisdiction, as do procedures affecting copyright, translation, and local regulation. [18]
International expansion often begins earlier than anticipated. Creators who succeed on crowdfunding platforms may attract distributors and consumers abroad. An international IP strategy may include trademark filings in key jurisdictions, use of the Madrid Protocol where appropriate, documentation of translation and licensing rights, and consultation with local counsel. A Madrid filing streamlines the application process, but each designated jurisdiction still applies its own substantive trademark law. [18]
The party game Unstable Unicorns provides an example of how quickly the popularity of a new game can sweep across international borders.
Designed by Ramy Badie, Unstable Unicorns debuted on Kickstarter in August 2017 with a $10,000 goal and closed with $1.86 million pledged by 33,720 backers. A follow‑up Kickstarter project, Unstable Unicorns: Control & Chaos, raised $2.07 million from 22,860 backers in 2018, illustrating how a successful game brand can generate additional products and an international customer base. [19, 20]
Leave the dice rolling to the game play
Legal considerations surrounding board game development and crowdfunding extend far beyond gameplay and aesthetics. By proactively identifying and protecting IP assets, creators position themselves for long-term success while avoiding disputes, lost rights, or expensive corrective action. Attorneys advising these clients can provide meaningful value by guiding them through early clearance, registration, contract drafting, and international planning. Proper protection of crowdfunded board game IP should be more than a roll of the dice.
SOURCES
1. Market Overview, Asmodee Group AB (2024) (reporting a €12.7 billion global tabletop-games market in 2023) https://cdn.svc.asmodee.net/production-payload-corporate/Asmodee%20Group%20AB%20-%20Final%2C%20locked%20version%20%28ENG%29.pdf.
2. The largest and longest running tabletop convention game, breaks all-time attendance records for historic 2024 event, Gen Con (Aug. 6, 2024). https://www.gencon.com/press/gen-con-2024-breaks-attendance-records-press-release.
3. SPIEL Essen 2024 Sold Out for the First Time and Set a New Space Record, SPIEL Essen (Oct. 7, 2024). https://www.spiel-essen.de/en/press?catid=12&id=222&view=article.
4. 2024 Exhibitor Guide, UK Games Expo (reporting 31,117 unique visitors in 2023), https://media.ukgamesexpo.co.uk/prod/documents/2024_EXHIBITOR_GUIDE_super_low_res.pdf.
5. 2024 Was a Big Year for Games on Kickstarter, Kickstarter (Feb. 5, 2025). https://updates.kickstarter.com/kickstarter-biggest-platform-for-games/.
6. See “Exploding Kittens” campaign page, Kickstarter, https://www.kickstarter.com/projects/elanlee/exploding-kittens; see also Exploding Kittens Is the Most-Backed Project of All Time, Kickstarter (Feb. 19, 2015), https://www.kickstarter.com/blog/exploding-kittens-is-the-most-backed-project-of-all-time.
7. See “Trench Crusade” campaign page, Kickstarter, https://www.kickstarter.com/projects/1405364378/trench-crusade.
8. Compendium of U.S. Copyright Office Practices § 1509.1(E) (Games), U.S. Copyright Office; see also Circular 33, Works Not Protected by Copyright, Compendium of U.S. Copyright Office Practices, https://www.copyright.gov/comp3/docs/compendium.pdf.
9. 17 U.S.C. §§ 411–412, U.S. Copyright Office, Circular 1, Copyright Basics. https://www.copyright.gov/title17/92chap4.html.
10. See Federal Trademark Searching and Comprehensive Clearance Search for Similar Trademarks, USPTO, https://www.uspto.gov/trademarks/search/federal-trademark-searching.
11. See Trademark Applications – Intent-to-Use (ITU) Basis, USPTO, https://www.uspto.gov/trademarks/apply/intent-use-itu-applications.
12. See 15 U.S.C. §§ 1051 et seq.; See also Trademark Manual of Examining Procedure § 1202.02 (Trade Dress), USPTO, https://tmep.uspto.gov/RDMS/TMEP/print?href=TMEP-1200d1e835.html&version=current.
13. See Provisional Application for Patent and Pursuing International IP Protection (public-disclosure/grace-period guidance), USPTO, https://www.uspto.gov/patents/basics/apply/provisional-application.
14. See Trade Secret Policy (elements and reasonable efforts to maintain secrecy), USPTO, https://www.uspto.gov/ip-policy/trade-secret-policy.
15. 15 U.S.C. § 1125(d) (Anticybersquatting Consumer Protection Act); See also Uniform Domain-Name Dispute-Resolution Policy, ICANN, https://www.law.cornell.edu/uscode/text/15/1125.
16. See Circular 30, Works Made for Hire, U.S. Copyright Office, https://www.copyright.gov/circs/circ30.pdf.
17. How Crowdfunding Works: A Guide for Creators (creator ownership), Kickstarter, https://updates.kickstarter.com/how-crowdfunding-works-a-guide-for-creators/.
18. See Madrid Protocol for International Trademark Registration, U.S. Copyright Office, https://www.uspto.gov/ip-policy/international-protection/madrid-protocol.
19. See “Unstable Unicorns” campaign page, Kickstarter, https://www.kickstarter.com/projects/ramybadie/unstable-unicorns.
20. See “Unstable Unicorns: Control & Chaos (The Backercorn Project)” campaign page, Kickstarter, https://www.kickstarter.com/projects/ramybadie/unstable-unicorns-control-and-chaos-the-backercorn.
David Baker is a solo Texas attorney currently based in Bozeman, Montana, whose practice focuses on trademarks, copyrights, and business law. He represents clients in a broad range of industries including board games and miniatures, videogames, comic books and publishing, and popular media and entertainment.