Once again, this year's release of the video game FIFA has generated a great deal of attention and criticism. The black market trade in in-game currency, i.e. the game's own currency that can technically only be earned in the actual game, in contrast, has barely been discussed in the media to date. This currency can be bought on dubious trading platforms for real money. Publishers in particular suffer as a result.

What exactly is involved here?

FIFA users can buy so-called packs with in-game currency that can be earned in the game, so-called "FUT-Coins", or with purchasable in-game currency, so-called "FIFA-Points". These packs include random player cards of different strengths. These purchases resemble a lucky bag: users have no guarantee that the packs earned or purchased will include a player they need for their game.

In order to get their desired player, users must turn to the FIFA 23 in-game digital transfer market. Here, unneeded virtual players can be transferred between FIFA users for earnable FUT Coins - but not for purchasable FIFA Points. This means that players using real money in the form of FIFA Points can either directly draw the player they need by chance or at least sell unneeded players on the transfer market faster than the other users in order to generate FUT Coins, which in turn can then themselves be used to obtain the desired player on the transfer market

Playable in-game currency available for purchase from dubious trading platforms

The actual game does not offer users any possibility to buy the player of their choice. This is exploited by dubious trading platforms based mostly in Asian countries: on these trading platforms, FUT Coins can be purchased for real money - despite this possibility not being provided by FIFA 23. However, this problem is not unique to FIFA 23. Almost every video game that contains earnable in-game currency is affected.

Besides the significant negative impacts on the designed digital ecosystem, publishers face considerable financial losses. Users are tempted to make their real-money purchases through these trading platforms instead of the in-game stores. However, publishers do not participate in their revenues.

Publishers have several options to stop this business model, which is neither wanted nor foreseen in their games. In principle, publishers can take action against their own users. In addition, claims against trading platforms are conceivable.

Action against own users

The legal basis for publishers to take action against their users is the user agreement. It is standard practice for the user agreement to contain a provision that prohibits the purchase of in-game currency, e.g. FUT Coins, via unauthorised trading platforms and for violations to be sanctioned by blocking the purchased content or the account (cf. clause 6 of the EA Terms and Conditions of Use of FIFA 23).

The yardstick for the validity of such provisions is, among other things, German law governing general terms and conditions. In principle, there are two central questions against which clauses have to be measured in concrete individual cases.

  1. First of all, such a prohibition may not constitute a surprising clause within the meaning of Sec. 305c of the German Civil Code [Bürgerliches Gesetzbuch, BGB]. This would be the case if the clause were to be objectively unusual and did not have to be expected by the user. The prohibition on purchasing non-purchasable game content from trading platforms is a standard market clause. Such a prohibition is therefore neither objectively unusual nor do users not expect it.
  2. In addition to this - subject to the exact wording in the individual case - a balancing of interests (Sec. 307 (1), (2) BGB) will doubtlessly be in the publisher's favour. There are good reasons to believe that users will not be unreasonably disadvantaged by such a prohibition. On the one hand, it is not evident how the prohibition on the purchase of in-game currency for real money via trading platforms should discriminate against third parties. Ultimately, this regulation only safeguards against the direct purchase - which is already not envisaged by the game - of exclusively earnable in-game currency (e.g. FUT Coins). In addition, the publisher has considerable interests in controlling its given ecosystem, as well as economic interests that are threatened by the above-mentioned third-party trading platforms.

Action against the trading platforms

Conceivably, publishers can take direct action against trading platforms. In particular, claims under unfair competition law and claims based on the infringement of the publisher's intellectual property rights come into consideration here:

  1. There is much to indicate that, by providing the "black market", the trading platforms are committing a sales-related hindrance of the publishers within the meaning of Sec. 4 No. 4 of the German Unfair Competition Act [Gesetz gegen den unlauteren Wettbewerb, UWG]. These are all measures that negatively affect the distribution channel between publisher and users. According to the Higher Regional Court [Oberlandesgericht, OLG] of Hamburg (5 U 168/11), the possibility of purchasing in-game currencies, which is fundamentally not provided for, jeopardises the distribution of the product and also leads to a distortion of competition in the game between users who adhere to the terms of use and those who generate competitive advantages by making additional purchases via trading platforms of third parties.
  2. In the same judgement of the OLG Hamburg (5 U 168/11), the court also emphasised that the use of the publisher's protected trademarks on these trading platforms is also not justified via Sec. 23 German Trademark Act [Markengesetz, MarkenG], since the unfairness of the use of the trademark also follows from the anti-competitive nature of the trading platforms.

Irrespective of whether further infringements are committed by the operators of the trading platforms and whether the publisher can take action against them, above all with injunctive relief, as a result, one should also consider the legal peculiarities and difficulties of enforcing claims abroad - often in Asia.

Solutions for publishers

Publishers can take action against the trading of in-game currencies by or through third-party trading platforms. They have claims against both the individual users of the games and the trading platforms. The most effective course of action, namely direct action against the trading platforms, entails the disadvantage of the difficulty of enforcing existing claims abroad.

Publishers would therefore be advised to also examine claims against domestic internet service providers in the future and to work towards having the trading platforms blocked. Here, publishers must examine in each individual case whether and on what basis such claims could arise. The case law of the Federal Court of Justice [Bundesgerichtshof, BGH] (I ZR 174/14) on action against internet service providers as interferers could serve as a guide here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.