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I've been trying to wrap my head around trademark/copyright/trade dress law in the US as it pertains to the depictions of real brands in fictional works. As far as I can identify, it is legal to depict brands, including their trade dress in TV, movies and books, as long as the following precautions are taken:

  • Avoid slandering the item, you can say John Smith slipped and fell, but you can't say his awful Nike shoes were to blame.
  • Avoid misrepresenting the situation such that the audience believes you have a relationship with the owner of the trademark, are the owner of the trademark, or are sponsored by them.
  • Avoid trademark dilution, where the trademark is used in a generic context in a way that could lead to the trademark being genericized.

This is a consistent message across every single source I've checked, including reading quotes from the statute itself.

However there appears to be something different going on with video games:

Back in 2012, Textron, the parent company of Bell Helicopters sued EA for including depictions of three of their aircraft in the game Battlefield 3. They sued for "trademark and trade dress infringement, false designation of origin, common law misappropriation and unfair competition, and injury to business reputation" over trademark violations of the names, designations and visual likeness of the aircraft. EA tried to argue they had freedom of expression rights to use the designs but were denied by two different courts. The case was eventually settled out of court.

Full story: http://www.lexology.com/library/detail.aspx?g=44cb1bb6-e9f0-43a3-b79d-037728f8f1af

And this seems to be even more true with cars, this question on Game Development StackExchange highlights the situation, even mentioning the extensive lengths Microsoft had to go to develop Forza, their popular series of racing games.

https://gamedev.stackexchange.com/questions/32469/do-i-need-to-obtain-a-license-to-use-real-car-brands-in-a-game

What's going on here? It doesn't seem like there's a violation any worse than one that would happen in a movie and half the things Textron is claiming don't seem to make sense (What is "unfair competition" when one of you is selling helicopters to governments and the other one is selling video games to consumers?). Is the trademark advice I've heard wrong? Are Textron just throwing their weight around and hoping it never goes to court? Does it relate to the fact that video games technically involve giving the consumer a model of the vehicle, where using the design in a movie only involves giving them a flattened 2D depiction of that vehicle?

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    Not an answer but many organisations pay movie and TV producers to place their products on film - they are therefore licensed – Dale M Jul 31 '17 at 21:01
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    Ditto DaleM. The economics are such that product placement in a movie or TV is usually seen as beneficial so leave to include them is very freely granted. But, the same attitude, for whatever reason, does not apply in the case of videogames. Also, don't forget that most vehicles have body designs that are subject to design patents, in addition to copyrights and trademark and trade dress. Another factor may be fair use like considerations - TV or a movie necessarily must include cars that are on the road without featuring them as that is what the world looks like. This is not so in video games. – ohwilleke Aug 1 '17 at 13:40
  • The same fair use argument could easily be made for depictions of modern battlefields. Anyway, if design patents are the problem (which is an angle that's been taken over the sale of 3D models of cars in the past), why are movies not also subject to them and why didn't Textron list "design patent infringement"? – user573949 Aug 1 '17 at 18:23

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