Courts cannot agree on how to handle cases centered on unlicensed use of a trademark or celebrity’s likeness in video games. Two tests have arisen as the primary standards by which to judge such cases: the Rogers test and the transformative-use test. However, in an area of law muddled by multiple standards and the inconsistent application of those standards to a relatively new medium, neither test can adequately balance mark holder rights with the constitutional rights of video game developers. In this turmoil, large video game companies take advantage of marks and licenses knowing the rightful holders will have little recourse, while other mark holders bring frivolous suits against earnest game developers who simply want to create a work of immersive art. In order to tame this unrest, courts must adopt a single standard that can be applied consistently to all cases. Many scholars tout the transformativeuse test as this standard, but it is not adequate.
This Note proposes a modification of the Rogers test that considers the factors of sufficient transformation, affirmative statements of sponsorship by the developer, the purpose of the mark use, and its frequency and importance in the context of the video game. This test will allow courts to comprehensively balance all parties’ rights while still upholding precedential case law.