My questions is in regards to the legal process of using real-world weapons and their names in a game. I've noticed in some games real-world weapons have been tweaked and renamed to be different (counter-strike, James Bond games), whereas others are totally realistic (Call of Duty, Rainbow Six). Is this for creative reasons or is there a cost/legal reason for this?

You can't use the name or design of a real-world weapon without permission from the company who own them. Yes, that will cost you.

Frequently asked question #61. http://www.sloperama.com/advice/faq61.htm

So what are the going rates for licensing weapons these days?

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Original post by diprinzio So what are the going rates for licensing weapons these days?

You'll have to call the weapon manufacturers and inquire.

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Original post by diprinzio So what are the going rates for licensing weapons these days?

The rates are whatever you negotiate them to be.

Licensing costs typically fall in the bin of "if you ask in the forums it costs too much."

There's 3 solutions:
1) Change the names/appearance enough to be a fictional weapon.
2) Use the trademarks under license.
3) Use the trademarks without license/permission, but display legal text listing all of the trademarks used, their actual owners, and a statement distancing yourself from these owners and explicitly stating that they do not endorse your game.

I have seen games use the 3rd option before, but you'd still be best off getting a *real lawyer* to write up your disclaimer.


There's always the 4th option too -- use the trademarked items without a disclaimer and hope your small enough to not be pursued by lawyers ;)
I'm sure there's plenty of games that have done this, especially free games. You do have to realise that you're project is legally fragile if you do this though.

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Original post by Hodgman There's 3 solutions: 1) Change the names/appearance enough to be a fictional weapon. 2) Use the trademarks under license. 3) Use the trademarks without license/permission, but display legal text listing all of the trademarks used, their actual owners, and a statement distancing yourself from these owners and explicitly stating that they do not endorse your game. I have seen games use the 3rd option before, but you'd still be best off getting a *real lawyer* to write up your disclaimer. There's always the 4th option too -- use the trademarked items without a disclaimer and hope your small enough to not be pursued by lawyers ;) I'm sure there's plenty of games that have done this, especially free games. You do have to realise that you're project is legally fragile if you do this though.

Option #3 is Bad. It is worse than taking the "hope they don't notice" route, because it shows that you did know about the rights, identified who owned them, and therefore should have known enough to properly license them. Depending on your location on the globe, you may face additional penalties by identifying their marks.

Option #1 is still risky because only the courts get to decide if it is distinctive or not. You would be facing a very difficult and expensive legal battle before you reach the judge's decision.

Either come up with your own original stuff, or license it from somebody who came up with original stuff. Anything else is just asking for trouble.

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Either come up with your own original stuff, or license it from somebody who came up with original stuff. Anything else is just asking for trouble.

When it comes to copyright, I'd agree, but trade-marks serve a different purpose.

You license copyrighted material in order to use that material in your own works.
You license a trade-mark in order to sell a product that you want to identify with the mark.

In many cases, it's fair to simply copy a TM without license (unlike copyright), except if you are associating the TM with a product. TMs mainly exist to protect brands and consumers from one product passing itself off as another.

Putting a real-world product in a fictional universe is not passing off. In fact it's common practice in the world of novels to create a connection with the reader...

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Original post by frob Option #3 is Bad. It is worse than taking the "hope they don't notice" route, because it shows that you did know about the rights, identified who owned them, and therefore should have known enough to properly license them. Depending on your location on the globe, you may face additional penalties by identifying their marks.

No it's not bad. It is the normal way of displaying a mark when not selling a product using the mark. Look at any advertisement with a direct product comparison (e.g. Coke VS Pepsi, not Coke VS "a leading brand of cola") for an example of the legalese.

E.g. if I'm selling a pistol silencer designed for a Colt .45.

#1) I call it a "Schmalt45 Silencer". Dodge the TM issue, but come off looking very dodgy. Probably won't help sales.
#2) I pay money to Colt and call it a "Colt(tm) 45 Silencer". Also have fine-print saying the TM is used under license (the licensing agreement will specify this legalese).
#3) I call it a "Dodgy brand Silencer, Colt(tm) compatible" and have a fine-print disclaimer saying that Colt owns the TM and that it is only being used to identify a compatible product range (in the correct legalese).
#4) Call it a "Colt 45 Silencer" and wait for the lawsuit.

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Option #1 is still risky because only the courts get to decide if it is distinctive or not. You would be facing a very difficult and expensive legal battle before you reach the judge's decision.

That's a risk that dozens of successful games (i.e. ones that are actually *worth* suing, like Counter Strike) have taken in the past.
Are there actually any cases where a gun manufacturer has sued a game developer for tarnishing their brand?

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Original post by Hodgman Quote: Either come up with your own original stuff, or license it from somebody who came up with original stuff. Anything else is just asking for trouble. When it comes to copyright, I'd agree, but trade-marks serve a different purpose. You license copyrighted material in order to use that material in your own works. You license a trade-mark in order to sell a product that you want to identify with the mark. In many cases, it's fair to simply copy a TM without license (unlike copyright), except if you are associating the TM with a product. TMs mainly exist to protect brands and consumers from one product passing itself off as another. Putting a real-world product in a fictional universe is not passing off. In fact it's common practice in the world of novels to create a connection with the reader... Quote: Original post by frob Option #3 is Bad. It is worse than taking the "hope they don't notice" route, because it shows that you did know about the rights, identified who owned them, and therefore should have known enough to properly license them. Depending on your location on the globe, you may face additional penalties by identifying their marks. No it's not bad....

Sorry but Frob is correct and you have misunderstood the law in this regard. What you are referring to in regard to advertising is something referred to as Nominative Use of a Trademark. Referring to a competing product in an advert is very different from making a creative work where the trademark plays an intrinsic part in the product. It should also be noted that Nominative Use is limited to the minimum use necessary to identify something and excludes any use of specific fonts or symbols that make up the mark.

Therefore it would be acceptable to have a character in a game say "I took my Colt and blasted that damn Coke machine to pieces", but it would not be acceptable to have a 3D modelled Coke machine, with the company logo on or a similarly accurately modelled Colt 45 in the game. This is especially true when the object plays a fundamental part in the game such as a Ferrari in a racing game or weapons in a FPS.

Your suggestion of using trademarks without permission while acknowledging them in the product is bad as it would constitute a Willful Infringement and would open the infringer up to additional penalties in addition to those for an innocent infringement.

http://marklaw.com/trademark-glossary/T-Z.htm

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Willful infringement Trademark infringement that occurs [when] the user of a mark knows or should have known that the mark was already being used. The consequence of willful infringement is that the defendant is liable for monetary damages, whereas an innocent infringer can only be forced to stop using the mark. However, willful infringement is presumed (though can be rebutted) when the mark that is infringed is federally registered. Furthermore, recent court decisions suggest that a user of a mark may be deemed to be a willful infringer if they fail to conduct a reasonable search of existing similar trademarks prior to adopting a mark.

Including a disclaimer in your game would most certainly prove that you "know that the mark was already in use".

What would the punishment be? In most cases on unintentional trademark infringement an injunction preventing further sale or distribution of the product. The trademark holder might try to get damages but to do so they would have to demonstrate actual financial loss. You might think that a game would not impact on the sales or a car or gun and that may be true. However you should also remember that companies like Lotus, Ferrari etc can license their trademarks to game companies for vast sums of money and your use of the trademark without a license would be depriving them of this revenue.

However, in the case of a willful infringement the court may also award costs. This means that even if the trademark owner can not prove financial loss they can still get their legal costs (which would likely amount to in excess of $100,000) against the infringer - easily enough to financially cripple an indie developer.

http://library.findlaw.com/1999/Jan/1/241477.html

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# Preliminary and Permanent Injunction : 15 U.S.C. §1116. Injunctive relief is the preferred remedy in trademark infringement cases. In determining the appropriateness and scope of the injunction, and in balancing the equities of the parties, a court may resolve any doubt in favor of the senior trademark holder. # Monetary Relief : 15 U.S.C. §1117(a). The court may award plaintiff, subject to the principles of equity, "(1) defendant's profits, (2) damages sustained by the plaintiff and (3) the costs of the action." Harm to the plaintiff, in the form of lost sales and injury to reputation and goodwill is often difficult to prove and quantify. The plaintiff must demonstrate that, but for the defendant's infringing activities, the plaintiff would have made the sales. Also, "in assessing damages the court may enter judgment, according to the circumstances of the case, for any sum above the amount found as actual damages, not exceeding three times such amount." Id . Damages are to function as compensation to the plaintiff, not a penalty to the defendant. # Attorneys' Fees : 15 U.S.C. §1117. "The court, in exceptional circumstances may award reasonable attorney fees to the prevailing party." "Exceptional" cases usually involve infringement which is malicious, fraudulent, deliberate or willful.

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Are there actually any cases where a gun manufacturer has sued a game developer for tarnishing their brand?

I haven't heard of any gun companies but I have heard of Military Aircraft manufacturers coming after flight sim makers. Also the fact that some people may not have been sued doesn't mean that trademark use without permission is legal. In fact when Counter Strike (previously a free indie mod) was taken in house an commercialised by Valve they changed the name of the weapons specifically to avoid trademark issues.

Also, if what you claim is true and it is legal to use Trademarks in this way, why do big smart companies like EA pay millions of dollars in license fees unnecessarily?

Two further points
1. In addition to trademarks some territories also provide protection for designs in the form of design rights which would prevent the OP commercially exploiting something which was recognisably their design.
2. Last and probably most important - Large companies actively defend their trademarks. If a company were to come after the OP the likely legal costs of mounting a defence would be far more than any indie could realistically afford