The use of third-party trademarks in video games is not a new phenomenon. In fact, conflicts between game developers and trademark owners have existed for almost as long as the medium itself.1 Now, however, as games continue to become more realistic, and with the rise in popularity of augmented reality games (in which gaming elements are superimposed over the real world) rise in popularity, concerns regarding unauthorized uses of trademarks in video games are likely to increase. Given the inherent uncertainty of lawsuits involving the interaction between artistic expressions and trademark rights, predicting whether a certain use will be permitted is difficult for both trademark owners and game designers. In this article, we discuss the current legal landscape regarding the interaction of the First Amendment and trademark rights, as well as the recent history of trademark infringement actions against video games specifically, and provide strategies for both game developers and trademark owners to navigate these uncertain legal waters...
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