Using Real Brands in Video Games: The Rogers Test Explained

Modern games look more like the real world every year. Real cars, real rifles, real storefronts, and real logos show up in game worlds constantly.

So what are the rules for using real brands in video games? They run through the Rogers test, a free speech rule built for movies that courts have applied to Grand Theft Auto, Madden, Call of Duty, Battlefield, and Gran Turismo.

Game studios won almost every one of those cases. But the one they didn’t win, and a 2023 Supreme Court decision, show exactly where the line sits.

Are video games protected by the First Amendment?

Yes. In Brown v. Entertainment Merchants Ass’n (2011), the Supreme Court said that “video games communicate ideas” through “characters, dialogue, plot, and music” and “the player’s interaction with the virtual world.”

That put games on the same footing as books and films. It’s why trademark rules developed for movies and songs now apply to your game.

What is the Rogers test?

The test comes from Rogers v. Grimaldi, a 1989 Second Circuit case about Federico Fellini’s film Ginger and Fred. It balances trademark rights under the federal Lanham Act against free expression.

Under Rogers v. Grimaldi, using someone else’s mark inside an expressive work is protected unless:

1. the use has no artistic relevance to the work at all, or
2. it has some relevance but explicitly misleads people about who made or sponsored the work.

Rogers started as a rule about titles. In the Grand Theft Auto case, the Ninth Circuit said there was “no principled reason” it shouldn’t also apply to a mark used “in the body of the work.”

The Second, Sixth, Ninth, and Eleventh Circuits have applied it. The Seventh Circuit hadn’t when an Indiana court decided the Dillinger case below, so that judge assumed it applied because both sides agreed.

Prong one: artistic relevance is a low bar

The Ninth Circuit said the level of relevance “merely must be above zero.” Realism clears it almost every time.

Brand owners keep arguing that their mark isn’t famous enough to matter. That argument has lost in the Grand Theft Auto, Gran Turismo, and Call of Duty: Ghosts cases.

Your depiction also doesn’t have to be accurate. The Mil-Spec patch maker argued that real soldiers can’t wear morale patches in the field.

The court said there’s no rule that a mark “must sufficiently mimic reality” to be protected.

Prong two: “explicitly misleading” means an actual statement

In Brown v. Electronic Arts, Jim Brown tried four routes to prove Madden misled players. All four failed.

• Surveys don’t count. The court said “evidence must relate to the nature of the behavior” of the game maker, “not the impact of the use.”
• True marketing copy is fine. EA advertised “[f]ifty of the NFL’s greatest players.” That was true and implied no endorsement.
• Changing details helps you. EA switched Brown’s jersey number from 32 to 37, which only made players less likely to think he was involved.
• Where you say it matters. EA staff allegedly told a law school conference that every likeness was licensed. The court brushed that off, then added: “If a similar statement appeared on the back cover of a version of Madden NFL, that might satisfy the ‘explicitly misleading’ prong.”

That last line is the one to tape above your marketing team’s desk.

The Ninth Circuit loosened this prong a bit in Gordon v. Drape Creative (2018). It said a mark alone can be explicitly misleading when you use it “in the same way” as its owner, or make it the centerpiece of your work with little of your own expression added.

For games, that means a real brand works best as one element of a larger world. It gets riskier when the mark is the product.

Video game trademark cases that applied the Rogers test

The Pig Pen strip club (Grand Theft Auto: San Andreas)

Rockstar’s artists photographed real East Los Angeles businesses and built a fictional district from them. One result was the Pig Pen, a nod to a real club called the Play Pen.

In E.S.S. Entertainment 2000 v. Rock Star Videos, the court noted that Rockstar changed brand names to fit its tone and that the games carry a disclaimer calling the locations fictional. It held that “A reasonable consumer would not think a company that owns one strip club in East Los Angeles, which is not well known to the public at large, also produces a technologically sophisticated video game like San Andreas.”

The club argued players could spend hours inside. The court’s answer: “fans can spend all nine innings of a baseball game at the hot dog stand; that hardly makes Dodger Stadium a butcher’s shop.”

Delta Force (Call of Duty: Modern Warfare 3)

This one matters because the plaintiff was a rival game publisher. Novalogic had sold its Delta Force shooter series since 1998 and owned registered marks.

In Novalogic v. Activision Blizzard, players fought as a Delta Force team in 9 of MW3’s 16 missions. Activision still won, because Delta Force is a real Army unit and the name never appeared on the box or in advertising.

The angry monkey patch (Call of Duty: Ghosts)

The patch was one of 32 starting options among more than 600 in multiplayer. In the trailer, it was “visible for about 2 seconds as a small image at the bottom of the screen.”

Mil-Spec Monkey v. Activision Blizzard granted Activision summary judgment on the trademark claims. But the copyright claim over the artwork wasn’t part of that motion, and it stayed alive until the parties filed a stipulated dismissal about four months later.

Rogers is a trademark defense. It does nothing for copyright, so a real logo’s artwork is a separate question.

Tommy guns (The Godfather games)

EA named a Tommy gun after John Dillinger and sold a “Modern Dillinger” in a downloadable weapons bundle. The court granted EA summary judgment because Dillinger’s public image as a gangster who “sprayed Tommy Guns” gave the name above-zero relevance.

The surprising part: nobody at EA could remember why they picked the name. The court said that “has little-to-no bearing” on relevance.

Humvees (Call of Duty)

AM General v. Activision Blizzard is the most detailed game ruling. Humvees appeared in nine games, in trailers, and in strategy guides, and in some levels players couldn’t advance without interacting with one.

The New York court applied Rogers alongside the Second Circuit’s eight Polaroid factors for confusion. AM General won only one factor outright (its mark is strong), and survey evidence tipped another slightly its way.

Everything else went to Activision. “Recognition is not confusion,” the court said, and militaries buying Humvees aren’t buying Call of Duty.

The survey showed 16% of players confused. The judge called less than 20% “at most some confusion,” far short of what Rogers requires.

AM General also pointed to boilerplate in the game manuals claiming Activision owned or licensed its content. The court dismissed it as “a paragraph in miniscule type buried in a user guide.”

The one that got away: Bell helicopters (Battlefield 3)

In Electronic Arts v. Textron, EA sued first, asking the court to declare Battlefield 3 didn’t infringe. Textron counterclaimed, and in July 2012 Judge Alsup refused to dismiss.

The difference from the Pig Pen was prominence. Textron alleged the AH-1Z and UH-1Y were the game’s primary attack and transport helicopters, and that EA’s “buy now” page advertised the AH-1Z.

The court found it plausible that players would think Textron supplied expertise for a realistic simulation. It never decided whether Rogers even applied, calling that “a proposition in dispute,” and held EA lost at this stage either way.

There was no final ruling on the merits. The parties filed a stipulated dismissal with prejudice in May 2013, and the docket doesn’t show any terms.

Keep the stage in mind. Textron was an early pleading ruling, and Activision later won AM General with Humvees in its trailers.

Licensed vehicles and weapons: when studios license anyway

If studios usually win, why do big publishers still sign vehicle and weapon licenses? Textron’s history with EA answers that.

According to Textron’s counterclaims, as summarized in the court’s order, the two companies fought over Bell helicopters in earlier Battlefield games and signed a confidential settlement in 2008. In 2010, EA paid a lump sum to license Bell vehicles for a Battlefield: Bad Company 2 “Vietnam” booster pack.

When the two sides couldn’t agree on Battlefield 3, Textron pointed to EA’s licensing deals with other companies for other games as proof of willful infringement.

Other courts reject that logic. The Delta Force court put it plainly, quoting an earlier decision: “Prior licensing activity is never an admission that a license is required.”

AM General also licensed Humvees for toys and at least four video games. The court treated that licensing as a “sporadic and marginal aspect” of a vehicle business, not a reason to find confusion.

Activision licensed Call of Duty construction sets with toy vehicles, and AM General’s trade dress claim failed given the gap between “a plastic figurine and a full-blown military machine.”

In the Delta Force case, though, the claims over a branded Xbox console and Turtle Beach headsets weren’t decided, because Microsoft and Turtle Beach didn’t join the motion. The win covered only the game and the strategy guide.

Practice guidance: Price a license when the real item is a featured, marketed part of your game, or when you want it in trailers or on merch.

Also weigh the calendar. AM General filed in 2017 and lost in 2020, and Textron took 16 months to end without a ruling.

In-game ads, billboards, and product placement

Real signage raises two different questions, depending on whether the brand paid to be there.

Unpaid depiction: signs, storefronts, and billboards

Gran Turismo shows real brands on track signage, just like the real track. In VIRAG v. Sony Computer Entertainment, the court said that use “furthers its goal of realism, a legitimate artistic goal.”

Storefronts that capture a real neighborhood work the same way, as E.S.S. shows. Renamed parody versions, like Rockstar’s, give players one more reason not to assume a partnership.

The Dillinger plaintiff argued that consumers now believe “all marks appearing in entertainment are placed or licensed.” The court refused to consider that argument without admissible evidence about this particular mark.

Paid placement: a contract, not a Rogers question

Practice guidance: When a brand pays for placement, it has approved the use, so there’s no sponsorship confusion for it to sue over. The risk moves to your contract.

Get written terms on approval rights, how the brand can be shown (crashes, damage, villains), exclusivity, and what happens if the deal ends after launch. Live-service games need a plan to remove or replace the asset.

Unsettled: No game case squarely decides whether paid partners in a world make players assume the unpaid brands also signed off. Textron alleged that game players “expect that the intellectual property of a party is used with the permission and approval of the mark’s owner,” and its claims survived a motion to dismiss.

The Dillinger court, by contrast, refused to credit a similar argument without evidence. No court has resolved the question on a full record.

What about disclaimers?

Use one, but don’t lean on it. Battlefield 3’s box stated that depicting a vehicle “DOES NOT INDICATE AFFILIATION, SPONSORSHIP OR ENDORSEMENT BY ANY WEAPON OR VEHICLE MANUFACTURER.”

The judge called it “not conclusive” because the disclaimer “might not be seen by teenage users, for example, anxious to rip open the package and play in the game.” And the Bad Spaniels dog toy disclaimed any affiliation with Jack Daniel’s and still lost Rogers.

What Jack Daniel’s v. VIP changed, and what it didn’t

In 2023, the Supreme Court decided Jack Daniel’s Properties v. VIP Products, the “Bad Spaniels” dog toy case. It held that Rogers is not appropriate when someone uses another’s mark “to designate the source of its own goods,” meaning “used a trademark as a trademark.”

The Court called its opinion “narrow.” It wrote: “We do not decide whether the Rogers test is ever appropriate.”

Justice Gorsuch, joined by Justices Thomas and Barrett, went further. He wrote that “lower courts should handle Rogers” with care, and that “the Solicitor General raises serious questions about the decision.”

The Ninth Circuit applied the ruling in Punchbowl v. AJ Press (2024). It held that “preexisting Ninth Circuit precedent adopting and applying Rogers otherwise remains intact and binding on three-judge panels.” The exception is a mark used as a mark, so E.S.S. and Brown still stand.

For games, that draws a line:

• Inside the game world (a billboard, a vehicle, a patch, a storefront), the cases above still apply in the courts that use Rogers.
• On the box, the store page, the title, a DLC name, or merchandise, you may be using the brand as your own trademark. Then you face the ordinary likelihood of confusion test instead.

DLC is the gray zone. In Dillinger, the court let the trademark claims survive an early motion partly because the “Modern Dillinger” was sold in a paid weapons pack, then ruled for EA on Rogers.

For the full story of the Bad Spaniels fight, see my breakdown of parody and the Jack Daniel’s case.

So what’s the future of Rogers? Three justices signaled doubts, so plan as if you may someday need to win the ordinary confusion factors too.

AM General shows that a realistic, in-world use can win that fight.

Real people are a separate problem

Jim Brown lost his trademark claim. On the same day, the Ninth Circuit decided Keller v. Electronic Arts and let college athletes’ right of publicity claims proceed.

The court held that EA’s use of their likenesses “is not, as a matter of law, protected by the First Amendment” under California’s test, because the game “literally recreates Keller in the very setting in which he has achieved renown.”

State laws vary. In Dillinger, the Indiana publicity claim failed because the statute didn’t reach people who died before its 1994 enactment, and its “literary works” exception covered video games.

Real people usually need a license. For another example, see ex-dictator Manuel Noriega’s suit against Activision.

How to size the risk before you use a real brand

Winning a Rogers argument and avoiding a lawsuit are two different things. Rogers is a defense, so you raise it after someone has already sued, usually at a motion to dismiss or summary judgment.

That costs money even when you win. Plenty of these disputes end in a settlement that includes a license fee plus legal fees, and a lawsuit can bring bad press along with the bill.

Practice guidance: When I help studios decide which real vehicles, weapons, and gear to include, I look hard at the brand owner, not just the case law:

• Is it still sold or in service? A retired or historical design tends to carry less risk than a current product the owner is actively marketing.
• How long has it been around, and how many games already use it? An item that appears across dozens of games without a fight is a different bet from one no game has used yet.
• Does the owner sue? Search federal court records (PACER) for cases where the manufacturer is the plaintiff, and note how many involve trademarks. A company that regularly goes after replica and toy makers is telling you how it enforces.
• What do other games’ credits say? “Used under license” credits suggest the owner licenses and expects to be paid. Affiliation disclaimers suggest other studios chose to rely on Rogers.
• Does the owner make games, or plan to? AM General’s case was weaker because it “presented no evidence that it is likely to enter the video game industry.” That isn’t decisive, though: the Delta Force plaintiff was an established game publisher and still lost.

Put together, those answers give you a risk profile for each brand. Swap the high-risk items for lower-risk ones, or license them, before launch instead of after a demand letter.

What You Should Do

• Record why each real brand is in the game. Realism carried the first prong in every case above. EA won Dillinger even though no one remembered why it chose the name, but a design note made during development is far better evidence.
• Use only what the scene needs. Name the item or show it in the world. Don’t build a mode, a level, or a title around it.
• Don’t make one brand the star. Avoid making a real branded item the default loadout, and mix manufacturers so no single company looks like an exclusive sponsor.
• Write a plain disclaimer, not a blanket ownership claim. Put a short, readable non-affiliation notice in the credits. In AM General, the brand owner pointed to manual boilerplate claiming Activision owned or licensed its content; the court brushed it off, but there’s no reason to hand a plaintiff that argument.
• Keep real brands in the world, not in your marketing. Textron’s claims survived because the helicopters were featured in ads.
• Never imply a partnership. No “official,” no brand logos on the store page, and no box copy saying the likenesses are licensed. Brown makes the back cover the danger zone.
• Clear your title, DLC names, and merch. After Jack Daniel’s, those get the full confusion analysis. Start with how to trademark a game.
• Price the license against the fight. For a featured vehicle or weapon, or anything on merch, a license can cost less than years of litigation.
• License real people. Athletes, celebrities, and streamers carry publicity rights that Rogers doesn’t touch.
• Don’t panic over a demand letter. Read what to do when you receive a cease and desist letter before you respond.

photo credit: B Tal via photopin cc