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Kelvin Cooke

Soda cans, to much of the real deal or not?

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I just finished creating some soda and beer cans for my game, what do you guys think? Can i use these or can i get in trouble because of them?

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Yes, you can get in trouble for them.

 

Whether or not you will is a complicated matter. You're not directly violating any copyright there, but you are creating something that is very similar to existing trademarks, especially for the right-most two designs. You're probably thinking this falls under "fair use" as parody, and maybe it does. But you'd have to discuss with a lawyer to be sure, and remember that fair use is a defense, not a state of being. So even if ultimately a court would rule in your favor, you'll still be in court if somebody who holds the trademarks you're toeing the lines of decides they want to go after you.

 

If I were you I wouldn't bother, the risk cannot possibly be worth the potential hassle unless this parody is somehow the crux of your game (which of course would make it more likely to be a problem for the IP holders).

Edited by Josh Petrie

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IMO - I am not a lawyer - this is clearly and trivially fair use. (I would change the beer can more, though.) Problem is, as mentioned above, fair use does not in itself protect you from trouble. But I'll take a slightly softer line in that you're not likely to get on anybody's radar in the first place, or merit more than a C&D if you do. In which case, just change them then. As a strictly creative note, I'd suggest making original designs unless parodying existing drinks is specifically necessary or useful to what you're doing.

Edited by Promit

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Oke, many thanks for the honest and quick answer! I think you have a point there, it is the trademark that counts mostly. I think it would be less tricky if i use plain colours without the trademark logos and/or the designs, and only use the names in a bended way like the two designs on the left.

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When I see this question being asked, it reminds of when people ask for health advice on the internet because they don't want to see a doctor.

The best thing to do in this case is

A. See a lawyer and understand your options

or

B. Don't do it

Since i am new to all this i just wanted an experienced opinion, which i got.

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Dr. Pooper
Crappy Cola
Poopsie
HineyCan

As long as you poke fun at the product, you can use names with similar likeness to original product under fair use of parody.

Signed,
Alfred E. Neuman

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Signed, Alfred E. Neuman


You shouldn't have signed a trademarked name - "names with similar likeness to original," you
said.

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As long as you poke fun at the product, you can use names with similar likeness to original product under fair use of parody.


Maybe, maybe not. Only a judge can decide if your work qualifies as Fair Use, which means you have to go to court and admit infringement ("but it's OK, because...") and see if the judge rules in your favour.

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Even if you reproduce the labels exactly (e.g. using photographs of the real products), it technically should be legal. Trademarks don't apply because you're not using them to identify your game in the marketplace (these are hidden deep inside the game, only seen after people purchase it). Copyright is an issue, because you're directly reproducing someone else's creative work, however, the incidental depiction of a product being used for it's intended purpose should be fair use (note that this is a grey area though)... It used to be commonplace in novels/books for real world products to be mentioned in stories in order to create a realistic setting, and there's legal precedent that such use is perfectly fine.

 

The other grey area is association. If you reproduce someone else's trademarks in your game, that might lead people to believe that this other brand actually endorses/supports your game. If your game gets bad press, this could cause damage to their brand (which could be worth a billion dollars)... Often websites have blanket disclaimers like: "All company, product and service names used in this website are for identification purposes only. Use of these names, logos, and brands does not imply endorsement" (note that such a disclaimer doesn't automatically put you in the right -- you could still lose a lawsuit).

 

However, if you watch American TV, you'll notice that even though this should be fine, brand names / labels are always blurred out, even when they appear in the background. The exception to this is product placement / advertising -- if you see a beer / soda label in a TV show / movie, it's because they've paid money to have it appear there as an advertisement...

The other reason that this is done is to reduce their risk of lawsuit. You can be doing something that's perfectly fine and legal, but still get sued anyway -- it's only at the end of the lawsuit that you find out whether you're right or wrong, and getting to the end might cost a lot of money. Worse; if you lose the lawsuit, you might be ordered to pay the legal costs of the other side, which could bankrupt you... So even when a TV show doesn't need to blur a label, they will do it anyway as part of a risk management strategy.

 

So the blurring serves two purposes -- it protects their advertising income stream by making product placement special, and reduces their risk of spurious legal attacks.

 

Personally, I like to get all righteous against the ever creeping scope of IP laws that stifle fair use, so I'd say go for it and damn the man! But sensibly, it's a good risk reduction strategy to avoid this altogether... :(

Edited by Hodgman

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There are many areas of law, not just the "Big Three" in IP of copyright, trademark, and patents.

They are certainly similar enough to be identified as their intended brands, so you've got copyright, trademark, trade dress, dilution by blurring, dilution by tarnishment, unfair competition, unfair or deceptive practices, making an association with a famous mark, false designation of origin, false descriptions, and more besides.


What is the cost to change them?  Perhaps an hour of work?  $20? $50?

 

What is the cost of a lawsuit?  Even a Cease and Desist order is going to cost hundreds of dollars to make sure you resolve properly, plus they'll demand you change the logos.

 

Note how in BOTH cases you end up changing the cans.  The only difference is one situation involves lawyers.

 

You can also leave them and accept the risk. But if you start to succeed or become successful or become popular, sooner or later you'll get a knock at the door demanding you to sign for receipt of a legal document.

 

 

 

 

About the only thing that is nearly always accepted as fair use is nominative use, using the thing's name.  Saying "this is Pepsi" is not a violation because that is the name. Doing much more than that is often a costly idea.

 

 

 

If the only people who will ever see it are you and your best friends, the risk is approximately zero.   ... Except you've already gone and posted it on the Internet, which has billions of viewers and never forgets.  Oops!

 

 

 

Fair use is a local legal concept and varies by location. Even in the same location judges evaluate it differently.  It is expensive to get wrong, and easy to get right by simply not using other people's ideas and properties.

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