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Can I have representations of actual game consoles in my game/app without legal ramifications?

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As the topic states, I am not sure of the legal aspects of representing actual game consoles in my (for profit) game (more of an application, really). To be clear, I mean having models for the consoles, both current and legacy (i.e. NES, PSX, Gameboy, Xbox, etc, you get the picture) and refering to them by their trademarked name within the game. Is this something that can get me into legal trouble?

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Yes. Nintendo will be along with a C&D letter as soon as they find out.

 

You can either plan to swap out the designs at that point, do it to start with or you can ignore the desist and have very expensive and tearful conversations with lawyers later.

 

Why are ALL the questions in this forum along the lines of "Someone else did a bunch of hard work building their neat brand/designs/logos/IP... I want the results of that but without the hard work bit, can I just steal it instead?"

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You could simply make generic console models, which are interpretable by the gamer/user, but not from a specific brand. I don't recognize any brand of computers when I run through an office or server room in say COD or battlefield :)

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Yes. Nintendo will be along with a C&D letter as soon as they find out.
 
You can either plan to swap out the designs at that point, do it to start with or you can ignore the desist and have very expensive and tearful conversations with lawyers later.
 
Why are ALL the questions in this forum along the lines of "Someone else did a bunch of hard work building their neat brand/designs/logos/IP... I want the results of that but without the hard work bit, can I just steal it instead?"


This is a bit presumptuous, the intent is not stealing their work. I am working on an app for cataloguing game collections and therefore was thinking about how to represent the consoles in the app without infringing on their rights.

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To make my question clearer please check the attachments. They are from a game cataloging app called Game Vault (there are many similar apps that do the same thing). In the screenshots, I added Paper Mario (N64) to my collection in the app. You can see that they use the name "Nintendo 64" and you can add "Paper Mario" complete with the boxart to your collection. How can they do this without legal issues (bear in mind I'm really in the dark on where the line is drawn). Considering many of these apps involve in-app purchases to disable ads, so they do profit out of this (though I believe Game Vault is fee).

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This is a bit presumptuous, the intent is not stealing their work. I am working on an app for
cataloguing game collections


Presumnptions were necessary, since you didn't provide that information with your initial question.
The use you suggest seems innocuous enough, but perhaps our resident attorney can provide you with
a more useful opinion.

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Also hoping monalaw will check in with a more definitive answer.

 

For my understanding, you can use trademarks in a nominative way, that is, you can use the name as a name.  You should keep the usage to a minimum, and make it clear that the usage is not an endorsement, and it is generally okay.

You see this in many products, particularly store-brand products.  For example, "Same active ingredients as OPTI-Free Replenish * ", or "15% stronger than Glad Drawstring Bags * ", with a disclaimer at the bottom about how those are trademarks of the product owner and are not endorsements of the product.

The same is true with the images; you can show enough at a low enough resolution that it indicates what the thing is, but you can't generally use the full image or eliminate the needs of the original. Google Image Search is a good example of this, showing thumbnails with links to the full product.

 

Be careful to keep it minimal, because the more of their stuff you use and the more frequent you use it, the greater the risk.  

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"This is a bit presumptuous"

Not really, I read you using the words "for profit" and presumed that by that you meant you were developing a "for profit" system which used other people's IP -- their brands, trading names, representations and designs -- to make YOU money not them...

Game Vault will likely be running with a plan of using a "fair use" defence -- note that while "fair use" doesn't require a not-for-profit basis, court decisions based on it favour those usages which don't derive money from the use.

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Posted (edited)

 

This is a bit presumptuous, the intent is not stealing their work. I am working on an app for
cataloguing game collections


Presumnptions were necessary, since you didn't provide that information with your initial question.
The use you suggest seems innocuous enough, but perhaps our resident attorney can provide you with
a more useful opinion.

 

 

And you're actually calling me out now. 

On the design/trade dress issue-- covered under trademark/unfair competition

On the trademark-- protected statutory right

 

So the threshold question is whether your use will create a likelihood of confusion as to the source of the goods/services sold. If you are simply identifying a trademark as a source of a particular good that is theirs and not yours, there's little to no likelihood of confusion-- trademark doesn't prohibit use of a brand name unless:

1) the use disparages the brand;

2) the use suggests endorsement of your product by the brand owner;

or 3) and most commonly, the use creates a likelihood of confusion in commerce. 

 

I think you're clear on number 3. Your use intends to properly identify and catalog games based on platform, which is probably okay. I say probably because there are several tests to determine likelihood of confusion, none of them particularly definitive, all of them highly subjective and dependent on substantial market research. But generally speaking, in your case, where it sounds like you're effectively aiming for a game database, you're probably cool. 

 

Endorsement isn't an issue unless you directly or indirectly imply that those companies are supporting you or you are otherwise speaking for or on behalf of their brand.

 

Disparagement-- just don't trash talk or misidentify products. Don't let forums devolve into proxy fanboy console wars if you can help it, or disable interaction completely.

 

Good resource for stuff like this (the cataloging, not the legal question: http://www.mobygames.com/ 

Edited by monalaw

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