Analyzing Microsoft's Updated Game Content Policy and How YOU CAN GET Around It

Recently, Microsoft announced changes to its game content usage policy that have Youtube and Twitch content creators upset. The new policy makes several changes to how Microsoft handles its intellectual property, namely its video games.

Most notable of the changes is that Youtube and Twitch video creators can no longer use the name of a Microsoft game in their video's title. This particular change has upset video creators, who derive substantial revenue from Youtube, and would otherwise rely on game names in their video titles to inform viewers what the footage is of. Microsoft uses the example that users will no longer be allowed to use the name "Halo" in video titles. This rule encourages the creation of generically listed videos which non-subscribed users will have a hard time locating. This may result in having fewer views, which would lead to a plateau or decrease in revenue for the content creator.

Why is Microsoft doing this?
Microsoft's rule change is entirely about protecting its intellectual property, for better or worse. One of the key points to any potential trademark infringement suit (no suit that I am aware of has been filed) is the strength of the infringed mark, or in this case, the game names. In such a lawsuit, trademark owners must show that they have taken steps to protect their mark to prevent its dilution. By disallowing Youtube and Twitch video creators (its unclear who else is effected) from using the trademarked game names in the titles of videos, Microsoft is attempting to prevent the dilution (or weakening) of its trademarks. Such a tactic may be unnecessary, as Microsoft has plenty of evidence to support that the marks are strong in spite of use on Youtube videos. 

What can video creators do?
Video creators can still adhere to Microsoft's new policy and loosely reference the game which is in the video. This may help:

• Use the copyright notice provided in the new rules on EVERY VIDEO that has game footage. Not doing so is just asking for the video to be removed.
• Specify the content in the video as much as possible without using the game's name
• Use area/map names (Ex. Blood Gulch Trickshots)
• Use item names (Ex. Tips for using the Torque Bow)
• Use mission/level/quest names (Ex. The Pillar of Autumn speed run)
• Avoid using the game name in the video description and tags
• Avoid using character names as they may be protected by trademark and/or copyright laws. 

Referencing something closely connected to a trademark without actually using the protected trademark is a lynchpin of ambush marketing. If done successfully, its entirely understood what the content is referencing without ever using a prohibited trademark. Similar tactics can be utilized by video creators to deal with Microsoft's new rules.