Law Commons^™

Let’S Stop Playing Games: A Consistent Test For Unlicensed Trademark Use And The Right Of Publicity In Video Games, Arlen Papazian

William & Mary Business Law Review

Courts cannot agree on how to handle cases centered on unlicensed use of a trademark or celebrity’s likeness in video games. Two tests have arisen as the primary standards by which to judge such cases: the Rogers test and the transformative-use test. However, in an area of law muddled by multiple standards and the inconsistent application of those standards to a relatively new medium, neither test can adequately balance mark holder rights with the constitutional rights of video game developers. In this turmoil, large video game companies take advantage of marks and licenses knowing the rightful holders will have little …