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LEGAL

Video Games in Court

This chart was first published Oct. 21, 2015 in conjunction with an in-depth analysis of the unlicensed use of trademark brands in video games.

Video Games in Court
* Even though it was decided 3 years before Brown, the Rock Star case is relevant because it uses the Rogers test to determine if the First Amendment protects unlicensed use of a trademark in a video game.
Case (Full Text)Alleged TM InfringementOutcome
Virag, SRL v. Sony Computer Entertainment America, LLC (2015)Sony’s Gran Turismo 5 and 6 driver simulation game shows race cars on famous European Manza racetrack passing under bridge displaying trademark of Italian commercial flooring company Virag.
Sony wins
  1. Game is expressive work protected by First Amendment, not just a simulation, because includes plot, characters and music;
  2. Use artistically relevant to create realism because Virag bridge is signature element of Manza track Sony was trying to recreate;
  3. Mere use of mark without authorization not enough to show use explicitly misleading.
Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc. (2014)Activision includes real-life “angry monkey” military patch that players can unlock in multi-player edition of Call of Duty: Ghosts game.
Activision wins
  1. Game is expressive work protected by First Amendment;
  2. Use of patch adds realism and promotes the authenticity and feeling of personal identity Activision is trying to create;
  3. Use not explicitly misleading because game packaging is clear as to patch’s source and origin.
Novalogic, Inc. v. Activision Blizzard (2013)Novalogic asks federal court to issue order preventing Activision from using its trademark “Delta Force” logo in the Call of Duty: Modern Warfare 3 game.
Activision wins
  1. Game is expressive work protected by First Amendment because;
  2. Use of “Delta Force” name and logo has artistic relevance because it adds to authenticity;
  3. Use not explicitly misleading because “Delta Force” name and mark have an established and well-known meaning within the public realm that predates Activision’s use.
Rebellion Devs. Ltd. v. Stardock Entertainment, Inc (2013)Stardock releases a game called Sins of a Solar Empire: Rebellion. Since it’s the fourth of a series, the game is referred to as simply Rebellion.
Stardock wins
  1. Game is expressive work protected by First Amendment;
  2. Use of “Rebellion” in title has artistic relevance because game is about a rebellion and rebel force;
  3. Although it does cause some brand confusion, merely including the name “Rebellion” in game title isn’t explicitly misleading or proof of Stardock’s intent to imply that Rebellion endorsed or sponsored game.
Electronic Arts, Inc. v. Textron, Inc. (2012)EA asks court to issue judgment declaring that depicting Bell Helicopters in Battlefield 3 game is not infringement; Textron sues claiming use is infringement.
No final decision issued
Parties settle after court refuses to dismiss Textron’s infringement claim because it’s “plausible” that consumers might think that Textron provided EA expertise and knowledge to “create its realistic simulations” of Bell Helicopters in game.
Dillinger, LLC v. Electronic Arts, Inc. (2011)EA uses “Dilllinger” and “Modern Dillinger” as names of Tommy gun weapons in Godfather I and II video games. (Use of “Godfather” is licensed.)
EA wins
  1. Game is expressive work protected by First Amendment;
  2. Use of Dillinger name to refer to weapons artistically relevant to plotline of games and appropriate because Dillinger was known to prefer Tommy guns as his weapon of choice;
  3. No evidence that use is explicitly misleading or that it confused or misled consumers.
E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc. (2008)*Owner of LA gentleman’s club called The Play Pen claims that Rock Star’s depiction of strip club called “The Pig Pen” with a similar logo in the fictionalized version of LA used in Grand Theft Auto: San Andreas game is infringement.
Rock Star wins
  1. Inclusion of Pig Pen artistically relevant because it furthers goal of creating a “cartoon-style” parody of East LA;
  2. Mere use of name and logo is not explicitly misleading; and
  3. Use doesn’t cause confusion because a “reasonable consumer” wouldn’t think that a company that owned a strip club in LA would produce a “technologically sophisticated video game.”

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