Usage of real weapons in a game
Fees will vary depending on the product. If it was James Bond film the fee would be big. If you can show proper sales projections and financials that show how much you will make then they may settle for a % of that - or they may decide that all video games make hundreds of millions and they want a slice. It all comes down to feeling them out as you talk to them. I have done licensing deals where I just walk up to someone at a show and ask "is that available?" - they reply that is is a number is mentioned, we shake hands and the next day a sample arrives at my hotel ready to be shipped home. In other cases people get giant money bags in their mind and you have to try to prove that isn't going to happen.
This page on bitlaw describes what trademark infringement consists of:
http://www.bitlaw.com/trademark/infringe.html
"The elements for a successful trademark infringement claim have been well established under both federal and state case law. In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff."
The most important thing about trademark infringement is that you are causing a consumer to confuse you with the person who owns the trademark. In other words, they might think that your game was authorized by Colt because it features Colt firearms. I think that's a stretch. Now, if you named the game "Colt Firearms", that's obviously going to cause confusion because a reasonable person would believe the game was either made by Colt or at least approved by them.
Simply using the guns as possible weapons in the game? I don't see how that's infringement, any more than writing a novel where the main character uses a Walther P99 is infringing on Walther's trademark.
Moreover, it is acknowledged in the courts that you have to be able to use trademarked names in a descriptive sense. There was a case regarding the Boston Marathon suing people for using its name. They lost because the courts found that it would be ridiculous to force people to refer to "That long race in a city on the Eastern Seaboard".
Can they sue you? Of course. I could sue anyone on this board. Can they win? Probably not, but it still costs money to defend yourself.
In actuality, what are the odds that an indie will make enough money to be worth suing? Or that your game will ever come to their attention?
http://www.bitlaw.com/trademark/infringe.html
"The elements for a successful trademark infringement claim have been well established under both federal and state case law. In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protectable trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff."
The most important thing about trademark infringement is that you are causing a consumer to confuse you with the person who owns the trademark. In other words, they might think that your game was authorized by Colt because it features Colt firearms. I think that's a stretch. Now, if you named the game "Colt Firearms", that's obviously going to cause confusion because a reasonable person would believe the game was either made by Colt or at least approved by them.
Simply using the guns as possible weapons in the game? I don't see how that's infringement, any more than writing a novel where the main character uses a Walther P99 is infringing on Walther's trademark.
Moreover, it is acknowledged in the courts that you have to be able to use trademarked names in a descriptive sense. There was a case regarding the Boston Marathon suing people for using its name. They lost because the courts found that it would be ridiculous to force people to refer to "That long race in a city on the Eastern Seaboard".
Can they sue you? Of course. I could sue anyone on this board. Can they win? Probably not, but it still costs money to defend yourself.
In actuality, what are the odds that an indie will make enough money to be worth suing? Or that your game will ever come to their attention?
Quote:Original post by milieu
This page on bitlaw describes what trademark infringement consists of:
http://www.bitlaw.com/trademark/infringe.html
That particular page refers to common law (unregistered) trademarks. The protections for registered trademarks are much greater and the need to prove lose is removed.
From Colt's own website:
And that was just with a cursory search.
Considering you're talking a firearms company with government/military licenses, I'd tread very carefully on any potential infringements.
Quote:These materials are provided by Colt Defense LLC ("Defense") as a service to its customers and may be used for informational purposes only. Single copies may be downloaded subject to the provisions below. By downloading any materials from this site, you agree to these terms.
SINGLE COPY LICENSE: You may download one copy of the information or software ("Materials") found on Defense’s website on a single computer for your personal, non-commercial internal use only. This is a license, not a transfer of title, and is subject to the following restrictions: you may not: (a) modify the Materials or use them for any commercial purpose, or any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble software Materials; (c) remove any copyright or other proprietary notices from the Materials; (d) transfer the Materials to another person. You agree to prevent, and report to Defense, any unauthorized copying of the Materials.
TRADEMARK INFORMATION: The trademarks and/or service marks of Defense include, but are not limited to, the trademarks and service marks listed below. Some or all of these trademarks or service marks have been registered in the trademark registries of the European Union and/or foreign countries.
(blah blah various weapons named)
The trademarks, trade dress and service marks of Defense are referred to herein as "Defense trademarks." Defense trademarks may be used publicly with permission only from Defense. Fair use of Defense trademarks in advertising and promotion of Defense products is permitted only with proper acknowledegment.
And that was just with a cursory search.
Considering you're talking a firearms company with government/military licenses, I'd tread very carefully on any potential infringements.
What about fair use? Say, I make a movie and in the movie someone uses a Colt pistol to kill someone? Can they sue me? I guess so, but they shouldn't be able to win. Caterpillar sued Disney because in some movie they used the Caterpillar bulldozers to destroy a jungle, so Caterpillar bitched that it makes the company look bad. AFAIK, they lost.
Also, what if you put somewhere in your game manual something like: "Colt [weapon name] is a registered trademark of Cold whatever"?
Also, what if you put somewhere in your game manual something like: "Colt [weapon name] is a registered trademark of Cold whatever"?
Why don't some of us create some clearly public domain weapons, that look reasonable but aren't infringing, so that we won't need to worry about such ridiculous things? If we use a creative commons license it may solve this problem.
It sounds like we must create some ourselves anyways, so how hard would it be to slap a creative commons license on the weapon designs?
It sounds like we must create some ourselves anyways, so how hard would it be to slap a creative commons license on the weapon designs?
This topic is closed to new replies.
Advertisement
Popular Topics
Advertisement
