Implications of Video Games and Immersive Entertainment in Trademark Law
Author | William K. Ford and Anna L. King |
Pages | 173-223 |
173
4
Implications of Video
Games and Immersive
Entertainment in
Trademark Law
William K. Ford
Anna L. King1
Takeaways
• Probably more so than in other forms of media,
incorporating trademarks into video games presents a
challenge of balancing the interests of free expression
with the goal of minimizing consumer confusion, and
while the legal rules of this balance remain uncertain,
the trend in the case law is to protect the artistic use of
trademarks in video games from Lanham Act claims.
• Advertising and marketing efforts are increasingly
integrated within entertainment media, which may
create a heightened risk of consumer confusion when
marks are integrated into video games.
1. William K. Ford is an associate professor of law at the John
Marshall Law School in Chicago. Anna King is a shareholder with
the law firm Banner & Witcoff, Ltd. in its Chicago office. The first
edition of this chapter was authored by Ford and Ben D. Manevitz.
For complete author biographies, see the Contributors section of
this book.
IMPLICATIONS OF VIDEO GAMES AND IMMERSIVE ENTERTAINMENT
174
• Customization options in video games and particularly virtual worlds
present ill-defined risks of liability.
Introduction
The “predominant function” of trademarks2 is to distinguish one
source of goods or services from another.3 The Xbox, PlayStation,
and Wii marks reduce consumer confusion by identifying which
games are associated with Microsoft, Sony, and Nintendo, and
which games will work on which consoles. Source identification,
however, is not the only valuable use of a mark. Like other expres-
sive media, video games present many opportunities to use marks
for purposes other than source identification, but unlike a book or
film, these opportunities are often widely available to both produc-
ers and consumers. On the producer side, game designers can use
trademarks to add realism to game environments, which, depend-
ing on the type of game, may make it more appealing. Driving a
Porsche or Ferrari in a racing game, for example, may be preferable
to driving a fictional vehicle made up by a game designer.4 On the
consumer side, game players can use trademarks for purposes of
self-expression. Some marks possess strong brand personalities
2. The chapter will refer to “trademarks” in the broad sense, and except where
noted, the term includes related categories of marks like service marks and trade
dress.
also
WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL
PROPERTY LAW
166 (2003).
4. According to the producer of Rainbow Six Vegas:
We can use real cars, or we can create cars of our own . . . [b]ut we’re
not car designers, so they’re always going to look a little bit off. It’s
always a plus when you can use a real product and base the modeling
in the game on real stuff.
Steve Tilley, And Now a Game from Our Sponsor,
OFFICIAL XBOX MAG.
, Aug. 2007, at
62, 65, available at https://archive.org/stream/OXM_2007_08-web#page/n27/mode
/2up.
Introduction 175
and represent “lots of information, emotion and coloration com-
pressed into a name or symbol.”5 By associating themselves with
particular marks, players can efficiently communicate information
about themselves to other players.6 A player wanting to be per-
ceived by others as environmentally minded might prefer to drive
a virtual Prius over a generic vehicle.7 If the Prius is not included
in the game by default, players may be able to add it to the game
environment themselves, depending on the extent to which the
game allows players to create new content.
Whenever trademarks are used without the owners’ permis-
sion, whether due to the actions of designers or players or both,
legal disputes are a potential result. This chapter briefly reviews
some basic principles of trademark law and then provides an over-
view of various trademark cases involving video games and virtual
worlds. As compared to other games, virtual worlds probably do
not raise unique trademark issues, but some virtual worlds create
broad opportunities for unauthorized trademark uses.8 Whether
augmented or virtual reality (AR/VR) games will raise any unique
issues is not yet clear.
5. Charlie Hughes, In Automotive Merger, the Brand Must Be King,
AUTOMOTIVE
NEWS
, May 15, 2000, at 14; see Jennifer L. Aaker, Dimensions of Brand Personality, 34
J. MARKETING RES.
347, 347 (1997).
6. See, e.g., Jennifer L. Aaker, The Malleable Self: The Role of Self-Expression in
Persuasion, 36
J. MARKETING RES.
45, 45 (1999) (“The basic argument is that attitude
objects, such as brands, can be associated with personality traits that provide
self-expressive or symbolic benefits for the consumer.”); Aaker, supra note 5, at 347
(“Researchers have focused on how the personality of a brand enables a consumer
to express his or her own self, an ideal self, or specific dimensions of the self
through the use of a brand.”) (citations omitted).
7. Although the research methodology is unclear, one marketing research
firm claimed, “[w]hile just 36 percent [of buyers] cited fuel economy as a prime
motivator for buying a Prius, 57 percent said their main reason was that ‘it makes
a statement about me.’” Vicki Haddock, Oh, So Pious, Prius Drivers,
S.F. CHRON.
, July
15, 2007, at D3.
8. See, e.g., Richard Acello, Virtual Worlds, Real Battles: Trademark Holders Take
on Use in Games, A.B.A. J., Jan. 2011, at 30.
To continue reading
Request your trial