Game Design Question

[antoninosnigro]

What is the name of your state (only U.S. law)? Ohio

I'm pretty sure I know what the answer to this is going to be, but as I have not read my specific question in the forums, I figured I would ask.

I am creating a card game that features "Equipment" cards. The cards are various cars and guns. I'm going for realism, so I'd like to use real makes and model names, approximate sales prices, and generic photos of the cars in question. For example, one card may have the title "Dodge Charger SRT8" with a generic picture of that car (no foreground, no background, just the stock car with no after market add ons, or distinguishing paint or markings). Would that card be grounds for a C&D?

If so, can I still use the generic picture of the car if I don't specifically refer to it by its make and model? (Instead of "Dodge Charger SRT8," use "Muscle Car?"

For clarification, when I say generic picture, I mean that I would recognize it as a Dodge Charger, or Ford Mustang, (or Honda Civic for that matter) but nowhere in the photo does it say those things and I can modify the photos to remove any badges or emblems that may be trademarked like the Dodge Ram shield or the Honda H.

 

[CSO286]

Where would you get the pictures from?

 

[antoninosnigro]

Where would you get the pictures from?

Google search or (if I really have to) take my camera to a few dealerships and take pictures of cars on the lot...

 

[STEPHAN]

Google search

pictures that other people took are under copyright

 

[quincy]

What is the name of your state (only U.S. law)? Ohio

I'm pretty sure I know what the answer to this is going to be, but as I have not read my specific question in the forums, I figured I would ask.

I am creating a card game that features "Equipment" cards. The cards are various cars and guns. I'm going for realism, so I'd like to use real makes and model names, approximate sales prices, and generic photos of the cars in question. For example, one card may have the title "Dodge Charger SRT8" with a generic picture of that car (no foreground, no background, just the stock car with no after market add ons, or distinguishing paint or markings). Would that card be grounds for a C&D?

If so, can I still use the generic picture of the car if I don't specifically refer to it by its make and model? (Instead of "Dodge Charger SRT8," use "Muscle Car?"

For clarification, when I say generic picture, I mean that I would recognize it as a Dodge Charger, or Ford Mustang, (or Honda Civic for that matter) but nowhere in the photo does it say those things and I can modify the photos to remove any badges or emblems that may be trademarked like the Dodge Ram shield or the Honda

It is possible to use pictures of products with visible trademarks in a card game. The only way you can avoid all risk of a trademark infringement lawsuit, however, is to get permission from the trademark holders to use their marks prior to use.

Trademark holders must be vigilant when policing the marketplace for unauthorized users of their marks, and they will attempt to halt the uses, usually through the sending of cease and desist letters, possibly followed by trademark infringement suits. If a trademark holder allows for unauthorized uses to continue, they can risk losing rights in their marks entirely.

Trademark law centers on consumer confusion. You cannot use a trademark, or a product protected by a trademark, to promote your own product, to capitalize off the good will of the product/trademark, or to confuse consumers into thinking the trademark holder supports, endorses, sponsors or is in any way connected to your game. This not only makes using a trademark difficult, it can make advertising your game difficult.

There are defenses to trademark infringement. One is a "fair use" defense (see the Lanham Act, 15 US Code, Section 1105(b)(4)). Fair uses can include the use of a trademark in a descriptive sense, for example in literature (describing a Mustang with the word Mustang), and the use of a trademark in comparative advertising (for example, Pepsi v Coke), and in journalistic accounts, and in parodies. There is also a "First Amendment" defense, where the public's interest in free expression can outweigh any confusion that may come from the trademark's use. I have listed below some trademark cases where fair use and the First Amendment were used as successful defenses. These can provide some insight into what courts consider a fair use of a trademark, but these cases can only be used as guidelines. All cases will be decided on their own merits.

In addition to worry over the reaction of a trademark holder to your use of the trademark, you also need to be concerned over the copyrights in any photographs you have not taken yourself. You must obtain permission from the photographer/copyright holder prior to use or you can be sued for copyright infringement. Taking your own photographs of the cars and guns will eliminate this risk.

I recommend you sit down with an IP attorney in your area and go over with the attorney your game idea (the cards and pictures you will use, the rules of play, how you intend to use the marks). This personal review is the best way to determine how to avoid the risks of a lawsuit.

Good luck.


*Trademark infringement cases:
Rogers v. Grimaldi, 875 F.2d 994 (2nd Cir. 1989)
Mattel, Inc. v. Walking Mountain Productions, Inc., 353 F. 3d 792 (9th Cir. 2003)
K.P. Permanent Make-Up, Inc. v Lasting Impressions, 543 US 111 (2004)
University of Alabama Board of Trustees v. New Life Art Inc., 683 F.3d 1266 (11th Cir. 2012)

 

[antoninosnigro]

Thank you quincy. I will definitely run the whole thing past an IP attorney when I'm done.