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Sometimes—but parody is not an automatic defense. In the United States, whether a fictional brand in a game infringes a real trademark depends on how the mark is used, whether it contributes to the expressive work, and whether players could think the real brand made or sponsored the game. A Ninth Circuit case upheld one in-game parody; a later Supreme Court ruling clarified that different rules apply when a defendant uses a mark to brand its own products.
Can a video game use a parody of a real brand?
A game may depict a fictionalized version of a real brand, but calling the depiction a parody does not settle the legal question. Parody can help show that players recognize a reference as commentary or humor rather than as a claim of real-world affiliation. Courts still examine the use itself and the possibility of consumer confusion.
One important distinction is whether the mark appears as part of the game’s expressive content—such as a location, character, or joke—or instead identifies the developer’s own goods or services. The legal analysis can differ between those uses.
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What the Pig Pen case decided—and what it did not
In E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc., decided November 5, 2008, the Ninth Circuit considered claims by the operator of the real Play Pen against Rockstar over the fictional “Pig Pen” strip club in Grand Theft Auto: San Andreas. The court affirmed judgment for Rockstar, finding that the modified mark was not explicitly misleading and that the depiction was protected expression on the record before it. The opinion described the game’s artistic aim as a cartoon-style parody of East Los Angeles, with the Pig Pen as one feature of its fictional setting. Read the Ninth Circuit opinion.
This was a decision by the U.S. Court of Appeals for the Ninth Circuit, not a nationwide permission slip to copy real brands. It turned on the expressive context and the way the mark appeared in that particular game. Other cases depend on their facts and the governing law in the relevant jurisdiction.
How the Supreme Court’s Jack Daniel’s decision changes the analysis
In Jack Daniel’s Properties, Inc. v. VIP Products LLC, decided June 8, 2023, the Supreme Court held that the Rogers threshold test does not apply when a defendant uses a challenged mark as a designation of source for its own goods. The Court did not decide whether Rogers applies in every other context. Its distinction matters for games: an imitated brand used as a studio or product brand is different from a mark appearing within the game’s expressive content. Read the Supreme Court opinion.
The Court put the point this way: “The test has not insulated from ordinary trademark scrutiny the use of trademarks as trademarks, ‘to identify or brand [a defendant’s] goods or services.’” The opinion was authored by Justice Elena Kagan.
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Questions to ask about a fictional game brand
- What role does the mark play? Is it part of the game world, or does it identify the developer’s own product or services?
- Does the reference fit the expression? Does it contribute to the setting, story, criticism, or humor, or is its relevance merely asserted?
- Could players infer sponsorship? Might consumers think the real brand owner made, endorsed, or sponsored the game? Parody alone does not answer this factual question.
- What claim and jurisdiction are involved? Infringement and dilution have distinct statutory rules, and the Pig Pen decision is a Ninth Circuit case.
These questions help explain the issues, but they are not a substitute for applying the governing law to a particular game and set of facts.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.Does parody protect a game from trademark dilution?
Not categorically. The Supreme Court also held that the Lanham Act’s noncommercial-use exclusion for dilution does not shelter parody, criticism, or commentary when a defendant uses a mark as a source identifier for its own goods. Parody may still matter in ordinary trademark analysis, but it is not a blanket shield against infringement or dilution claims.
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