Is Using Call of Duty in This Comment Infringement
2016; Brigham Young University; Volume: 2016; Issue: 1 Linguagem: Inglês
ISSN
0360-151X
Autores Tópico(s)Digital Games and Media
ResumoINTRODUCTIONImagine yourself deep behind enemy lines in a war-torn country. Arrayed in traditional Army camouflage, you shoulder your AK-12 assault rifle and, dodging rifle fire, sprint to the Bell helicopter waiting to extract you. As you leap aboard the helicopter, a soldier wearing a uniform with a logo pulls you inside, yelling at the pilot to take off.Scenes like this are common in first-player video games such as Activision's Call of Duty. Video games like Call of Duty often use real products, such as the AK-12, Bell helicopter, and Delta Force uniform mentioned earlier, to make the games more realistic.1 Recently, game developers and product owners have clashed over the right to use virtual copies of products in video games without authorization from product owners.Traditionally, video game developers have paid premium prices to license the rights to trademarked products. In 2006, Activision paid Gibson Guitar Corporation $1.3 million to use Gibson's trademarks, trade names, and trade dress in the Guitar Hero video games for two years.2 However, video game developers are starting to resist this practice. In May of 2013, game developer Electronic Arts (EA) announced that it would no longer negotiate licenses to use third-party guns in its games.3 While EA's policy has not been tested in court, the policy shows that companies may be losing control over the depiction and use of their brands in virtual environments.Game developers have a financial interest in using trademarked products. Research suggests that even in virtual worlds, consumers pay more for products with famous or prestigious brand names.4 Developers and gamers alike further capitalize on trademarked goods in games like Second Life, where products are sold for virtual currency that is, in turn, exchangeable for U.S. dollars.5 Brands such as Ferrari, Cartier, Rolex, Chanel, Gucci, Prada, Ray-Ban, Nike, and Apple have been or currently are sold on Second Life for prices ranging from $0.75 to $40.6 Some websites, such as http://3dexport.com/ and http://www.turbosquid.com/, capitalize on trademarked goods by selling virtual models of real products.On the other hand, product owners have an interest in protecting their brand names and product reputation from widespread misappropriation. If a trademark holder loses control over his trademark and it becomes generic, he lose the rights to that mark altogether.7 Furthermore, virtual products that are dysfunctional or used in a negative light may harm actual sales.8This Comment analyzes different legal approaches companies take to control their brands' virtual presence.9 The three main avenues of relief are trademark protection (Part I), design patent protection (Part II), and copyright protection (Part III). These protective strategies are not mutually exclusive,10 and product owners typically use several different methods simultaneously to protect their brands.11 To date, no method has been particularly successful against video game developers, and it may be some time before the boundaries are clearly marked between the rights of product owners and video game developers.I. TRADEMARK PROTECTIONProduct owners typically claim trademark infringement when their products appear in video games. Trademark protection, which extend indefinitely,12 lasts longer than either copyright or patent protection, so a company could, in theory, assert trademark claims against video game developers for as long as the company holds the trademark.Product owners have legal basis in trademark law for fighting unauthorized trademark use. Widespread misappropriation of trademarks can result in genericide, dilution, and loss of registration and exclusive use of the mark.13 If a trademark owner fails to police his mark and the trademark becomes a common name for a good, it become generic and lose its trademark status.14 Some brand names that lost trademark protection through genericide include escalator, cellophane, aspirin, trampoline, yo-yo, brassiere, granola, jungle gym, tarmac, and zipper. …
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