Fallout 4 was released this week, and it has been widely viewed as one of the most anticipated games of this year. The setting is in the historic city of Boston, after a nuclear apocalypse. The game digs deep into real-world detail and character customization, including sites such as Fenway Park, in addition to the ability to have your character wear a baseball jersey. Unfortunately, these features may suggest you are a Boston Red Sox player, and the MLB has taken issue with some modifications that gamers have made.
One such gamer is an independent developer who has used his skills to make it possible to play as David Ortiz, the Red Sox slugger. He added the name “Ortiz” to the back of the jersey – along with the number 34, the Boston Red Sox logo on the front of the jersey, and the Boston “B” on the helmet. The MLB has already released a statement that this modification infringes on both the MLB and the Boston Red Sox respective rights. They have not yet announced if they will actively block the developer – but if they do, are they likely to succeed?
In short, the obvious answer is yes. Trademarks protect the consumer from confusion of where the product or service originates. This case would look at the modifications and ask if the normal consumer would believe that the Red Sox or MLB invested or gave permission to use the marks in the game or not. Given that the MLB has not expressly given permission, it isn’t exactly happy that its marks are being used.
If the marks were altered in a way that did not make it clear that it was the “Red Sox,” but rather implied it, the independent developer would potentially have a stronger case. For example, if the developer were to only put Ortiz’s name and number on the back of the jersey, the MLB and the Red Sox would not have as strong an argument. The name and number belong to Ortiz, himself, therefore he would be the one to bring suit, and he would likely ask for compensation to use his name in-game.
The independent developer stated he would not be willing to fight the MLB as he does not see the argument as to value, nor does he have defense that would allow for the modification to stay as a public download. If you’re a Boston Red Sox fan and want this modification, you’d better swing for it now before the umpire cries foul.