IP AND VIDEO GAMES
says Komen, where trademarks have been incorporated into games but have been cleared of infringement. For example, publishers Rock Star Videos and Electronic Arts have both survived allegations of trademark infringement in separate cases decided in 2008 and 2011, respectively.
“Just because you have copied a trademark doesn’t necessarily give rise to liability, unless you have created a likelihood of confusion or tarnished a famous mark,” he says.
For the most part, the DMCA acts as a solid barrier against third party infringement of both trademarks and copyright. Perhaps its scope is less clear, however, when people create content on a game before uploading and sharing it online, much in the same way that LittleBigPlanet players are encouraged to do.
“Tis is a little more grey because if you are aware of these characters being shared and don’t do anything, then potentially there is exposure to infringement claims,” Anderson says.
Case law
Tere is at least one piece of case law giving guidance on this area. In the 1998 Micro Star v
FormGen case, a US court initially cleared Micro Star of infringing FormGen’s copyright aſter it had repackaged user-generated content from Duke Nukem, published by FormGen, and sold it to consumers under a different name. Te appeals court saw things differently, however, and found that Micro Star’s commercial activities had in fact infringed FormGen’s copyright.
Te implications of this case, along with the few other cases covering user-generated content, are hard to apply more generally.
“Tis really is a new area,” says Kayser. “Tere are a lot of little pieces out there, but no case has put them all together yet.”
Tis lack of clarity is exacerbated by the cold truth that the law simply cannot keep up with technology that evolves at such lightning pace. In the US, and in most other countries, the statute was not built for disputes over virtual characters or brands created on an advanced gaming platform, and until Congress or the Supreme Court makes some dramatic changes, the courts will continue to be constrained by an ageing law.
We will have to wait for a case that puts together all the pieces. Until then, publishers might be wise to implement stringent terms and
conditions governing the use of content as well as complaints about that use.
In the meantime, the user-generated world continues to provide food for thought. ‘Never 30’ is just one example. Born in Second Life, the 3D gaming world in which avatars trade virtual property, it went on to transcend fantasy. In 2007, ‘Never 30’ was registered as a US trademark to protect anything from swimsuits to evening gowns in Class 25. Tere was no mention of computer services or
soſtware—the types of
class one might associate with a virtual gaming platform.
‘Never 30’ shows that as the worlds of fantasy and reality continue to merge, questions about ownership, use and enforcement, among many others, will be harder to answer. For example, can use of ‘Never 30’ in a virtual world be enough to show use of that mark in the real world?
“If it were registered, the USPTO would be saying ‘yes’,” says Kayser. “But I think this is starting to stretch reality.”
As ‘Never 30’ shows, this is an intriguing debate and one in which more questions seem to be asked than answered. Who knows what future holds?
the
www.worldipreview.com
Trademarks Brands and the Internet Volume 2, Issue 3
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