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In United Kingdom, Don’t Game Your Players with False Advertising

Advertising for new games can present some troublesome legal issues, if due care is not taken. A recently concluded matter in the UK highlights an example of the potential issues. Hello Games was investigated by the Advertising Standards Authority (ASA), based on complaints from customers that advertised features of its game (No Man’s Sky) either did not actually appear in the game or did not appear in the way advertised. The ASA ruled, in this case, that the advertising was not in fact legally misleading. Notwithstanding this ruling, game publishers need to be careful when advertising new games.

The following are some examples of fact scenarios where false advertising of games have been or could be alleged, under UK or US law:

  • Misleading Trailers – game publishers use trailers, which were created before finalization of the game, that do not reflect actual game play

  • Graphics Quality – higher quality graphics are shown in ads than in the actual game

  • Advertised Features Not in Game – cool game features are advertised, but not included in initial release of game

  • Free to Play Games with In-App Purchases – ads claiming that a game is free to play, but depict items that require in-app purchases, without making clear purchase is required

  • Failure to Disclose Odds – some games used a mechanic, called Kompu Gacha, that enabled users to purchase random virtual goods and upon acquiring a predetermined set of goods, the user would receive a super rare virtual good. The problem was, users complained that despite spending significant money, they never got the rare goods. Allegedly the odds were not disclosed and were not fixed.

The legal test for false advertising requires more than just showing a discrepancy between an ad and the actual game. In the U.S., advertising is prohibited if it is found to be deceptive or unfair.

An ad is deceptive if it is likely to: (i) mislead consumers; and (ii) affect consumers’ behavior or decisions about the product or service.

An act or practice is unfair if the injury it causes, or is likely to cause, is: (i) substantial; (ii) not outweighed by other benefits; and (iii) not reasonably avoidable.

When conducting an advertising review, it is necessary to ensure that the advertising is not illegal as false advertising. However, that may not be sufficient from a business perspective. It is also important to ensure that even if the ad is legal, it does not nevertheless leave customers feeling duped or that they got less than they expected.

Copyright © 2017, Sheppard Mullin Richter & Hampton LLP.

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About this Author

James Gatto, Intellectual Property, Technology, Sheppard Mullin Law Firm
Partner

Jim Gatto is a partner in the Intellectual Property Practice Group in the firm's Washington, D.C. office. He is also Co-Team Leader of the firm's Digital Media Industry and Social Media and Games Industry Teams, and Team Leader of the firm's Open Source Team.

Areas of Practice

Mr. Gatto leverages his unique combination of nearly 30 years of IP experience, business insights and attention to technology trends to help companies develop IP and other legal strategies that are aligned with their business...

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