Intellectual property in electronic games under Brazilian law and the fostering of innovation, development, and fair competition: the Nintendo v. Pocketpair case as analytical substrate

Abstract

This article examines the intellectual-property regime governing electronic games under Brazilian law in light of the gap opened by Law No. 14,852/2024, whose Article 20 added item VI to Article 2 of the Industrial Property Law and vested the National Institute of Industrial Property (INPI) with the power to grant registration to electronic games, yet without regulating its nature, requirements, or effects. The research problem is to investigate how such a power, devoid of a regime, may be operationalized in a manner compatible with the hybrid nature of the game and with the role of intellectual property in fostering innovation, development, and free competition. The study adopts a hypothetical-deductive method, drawing on bibliographic, documentary and takes as its analytical substrate the Nintendo v. Pocketpair dispute concerning the game Palworld. The hypothesis to be tested is that protecting the game as a unitary work, integrated by the computer program and the Game Design Document (GDD), through a constitutive registration of a sui generis nature, akin to the protection of integrated-circuit topographies, provides an answer of greater legal certainty to the gap identified. The study articulates the legal framework, the Brazilian registration design, and the alternatives under construction at INPI, and concludes that protecting the game as a unitary work, through a sui generis constitutive registration bearing on the originality of the combination of its elements, offers the secure parameter today absent for distinguishing legitimate inspiration from undue copying, thereby reconciling the fostering of innovation with fair competition.