Scandalous Trademarks: Wanted Dead or Alive?

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On June 15, 2011, the United States District Court for the Southern District of Indiana put a bullet in Dillinger, LLC’s efforts to hold Electronic Arts liable for trademark infringement and unfair competition based on EA’s use of the word “Dillinger” in one of its video games. EA is the developer and publisher of Godfather video games based on the movies and novel by the same name. The games allow players to use weapons identified as the “Dillinger Tommy Gun” (first Godfather game) and the “Modern Dillinger Tommy Gun” (second Godfather game). Dillinger, LLC, the owner of the “Dillinger” mark, alleged that such use constituted trademark infringement. The court held that despite Dillinger, LLC’s interest in the Dillinger mark, EA was entitled to use the mark in the manner it had because video games are considered “literary works” in the Second Circuit, and the use of trademarks in literary works can be, under proper circumstances, protected by the First Amendment. Specifically, the use of the mark must: (1) have “artistic relevance” to the work; and (2) not explicitly mislead the public as to the source or content of the work. The Court held that this test was met here.

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