Evolving case law on the fair use of famous trademarks in video games

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By Sean F Kane

A recent spate of cases has generally upheld, on First Amendment grounds, a developer’s right to include unlicensed trademarks in video games. However, until the body of case law becomes so prevalent that trademark owners recognise that they cannot possibly succeed in an action involving use in a video game, it may be wise for developers to be circumspect in what they include. In many cases, the costs of licensing a trademark may be much less than demonstrating rights under the First Amendment

In some of today’s top-grossing video game titles, realism is a key component to the success of the game. In order to promote authenticity, many of the leading publishers incorporate the names, images and trademarks of famous brands into the video games. While many of the brands have historically agreed to the inclusion of their marks, more and more video game publishers are including trademarks in their games without the owner’s express authorisation.

For instance, in early May 2013, Electronic Arts issued a statement saying it will no longer be entering into licensing agreements with gun manufacturers but that it retains the right to continue to feature branded guns in EA games. ‘We’re telling a story and we have a point of view,’ EA’s president of labels Frank Gibeau said in an interview. ‘A book doesn’t pay for saying the word “Colt”, for example.’ Put another way, EA is asserting its First Amendment…

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