Trademark Rights in Video Games: What You Need to Know

Video games are a form of creative expression that often involve the use of trademarks, such as logos, names, characters, designs, and slogans. However, the use of trademarks in video games also poses significant challenges and risks for intellectual property (IP) rights, especially when it comes to the use of trademarked objects in video games, such as cars, guns, sports equipment, celebrities, etc. In this blog post, we will discuss some of the trademark issues that arise from the use of trademarked objects in video games, how the courts might evaluate trademark issues, and what some common trademark infringement claim defenses would be.

two people playing FIFA on PlayStation

Video games are a form of creative expression that often involve the use of trademarks, such as logos, names, characters, designs, and slogans. Trademarks are distinctive signs that identify the source and quality of goods or services in the market. They help consumers to distinguish between different brands and avoid confusion or deception. Trademarks are valuable assets for video game developers, publishers, and distributors, as they can enhance their reputation, customer loyalty, and market share.

However, the use of trademarks in video games also poses significant challenges and risks for intellectual property (IP) rights, especially when it comes to the use of trademarked objects in video games, such as cars, guns, sports equipment, celebrities, etc. In this blog post, we will discuss some of the trademark issues that arise from the use of trademarked objects in video games, how the courts might evaluate trademark issues, and what some common trademark infringement claim defenses would be.

The Use of Trademarked Objects in Video Games

Video games often feature realistic and immersive environments that include various objects that may be protected by trademarks. For example, a racing game may include cars from different manufacturers, such as Ferrari, Lamborghini, or Porsche. A shooting game may include guns from different brands, such as Glock, Colt, or Beretta. A sports game may include equipment from different companies, such as Nike, Adidas, or Reebok, and it may also include images or names of ahletes, like LeBron James or Lionel Messi.

The use of trademarked objects in video games can create a sense of realism and authenticity for the players, and can also increase the appeal and popularity of the game. However, the use of trademarked objects in video games can also create potential legal problems for the game developers and publishers if they do not obtain the necessary permissions or licenses from the trademark or image owners. The use of trademarked objects in video games can infringe the trademark rights of the owners if it creates a likelihood of confusion among consumers about the source or sponsorship of the game or the object. For example, if a game features a car with a Ferrari logo without authorization from Ferrari, it could imply that Ferrari endorses or sponsors the game or that the game is affiliated with Ferrari. This could confuse or deceive consumers who may think that they are eiter buying an official Ferrari product or that Ferrari has approved of its use in the game.

How Courts Might Evaluate Trademark Issues in Video Games

Trademark infringement claims are governed by federal law under the Lanham Act. To prevail on a trademark infringement claim, the plaintiff must prove that:

  • The plaintiff owns a valid and protectable trademark;

  • The defendant used the trademark in commerce without authorization;

  • The defendant’s use of the trademark is likely to cause confusion among consumers about the source or sponsorship of the goods or services.

To determine whether there is a likelihood of confusion between two trademarks, courts consider a number of factors, such as:

  • The strength and distinctiveness of the plaintiff’s mark;

  • The similarity between the plaintiff’s and defendant’s marks;

  • The similarity between the goods or services offered by both parties;

  • The evidence of actual confusion among consumers;

  • The intent of the defendant in using the mark;

  • The sophistication and care exercised by consumers in purchasing the goods or services.

In the context of video games, courts may also consider additional factors that are specific to this medium, such as:

  • The artistic relevance and expression of the use of the mark;

  • The degree of integration and interactivity of the mark within the game;

  • The prominence and placement of the mark within the game;

  • The disclaimer or notice provided by the game developer or publisher regarding the use of the mark.

Some Common Trademark Infringement Claim Defenses in Video Games

A defendant in a trademark infringement lawsuit can raise several kinds of defenses against a claim of trademark infringement. Some common defenses include:

  • Invalidity: The defendant can challenge the validity or enforceability of the plaintiff’s trademark on various grounds, such as genericness, descriptiveness, functionality, abandonment, fraud, etc.

  • Non-infringement: The defendant can argue that there is no likelihood of confusion between their use of the mark and the plaintiff’s mark based on the factors discussed above.

  • Fair use: The defendant can argue that their use of the mark is fair and lawful under certain circumstances. There are two types of fair use defenses: descriptive fair use and nominative fair use. Descriptive fair use allows a defendant to use a mark to describe their own goods or services in a truthful and non-misleading way. For example, a game developer can use a mark to describe a feature or characteristic of their game without implying any affiliation with the mark owner. Nominative fair use allows a defendant to use a mark to refer to or identify another’s goods or services in a way that is necessary and not confusing. For example, a game developer can use a mark to identify a real object or person that is depicted or mentioned in their game without suggesting any endorsement or sponsorship by the mark owner.

  • First Amendment: The defendant can argue that their use of the mark is protected by the First Amendment right to freedom of speech and expression. This defense applies when the use of the mark is artistic, creative, or expressive, and not purely commercial. Courts may balance the First Amendment interests of the defendant against the trademark interests of the plaintiff, and consider whether the use of the mark has any artistic relevance to the game, whether it explicitly misleads consumers about the source or sponsorship of the game, and whether it serves a compelling public interest.

Conclusion

Trademark rights in video games are complex and evolving issues that require careful attention and analysis. Video game developers and publishers should be aware of the potential trademark risks and opportunities that arise from the use of trademarked objects in their games, and seek professional advice from trademark attorneys if they have any doubts or questions. Trademark owners should also monitor and protect their trademarks from unauthorized or infringing use by video game developers and publishers, and enforce their rights when necessary. Trademark law is a dynamic and fascinating field that balances the interests of various stakeholders in the video game industry. Contact us to learn more.