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Protect each software generation under trademark, copyrights

When taking proper steps to protect your trademarks or intellectual property, it is sometimes difficult to keep up with rapidly changing technology. It's also sometimes difficult for Massachusetts copyright owners to determine how far the law can be stretched to safeguard their patented products.

A popular video game manufacturer is involved in business litigation over trademark infringements with the manufacturer of helicopters and aircraft. The video game depicts the helicopters in battlefield scenes and they are clearly identifiable. Not only is the aircraft company concerned that their trademarked helicopters are being used, but they do not wish to imply that they endorse the video game nor had any involvement in the game's development.

The intellectual property dispute seems to be unending because new generations of the video game are constantly being released. While earlier generations of the game were covered by a cease and desist from the aircraft company, the video game makers say it doesn't apply to the latest version of the game.

The trade-dress and trademark infringement claims are further complicated by two different state district courts, as each company continues to file suits in their headquartered states. Jurisdiction and transfer requests for convenience of one or the other company were denied.

In the end, judges have determined that video games images are expressive works, protected by the First Amendment and therefore do not infringe on trademarks. In addition, artistic depictions do not require gaining permissions or paying rights fees to manufacturers.

Other software and game developers will be watching this case closely as it will determine the ramifications of depicting likenesses of real products in the future.

Source: Courthouse News Service, "Video Game Weapons Dispute Can Charge On," Jonny Bonner, May 2, 2012

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