On 12/7/2018 at 3:46 AM, 1024 said:
But that raises the question: how do you put cars in your game without having an automotive designer? If every car model that ever existed was somebody's IP, and so many cars look alike, is there such a thing as a generic car?
Yes, there is such a thing. Lots of artists make lots of generic cars.
This is the part with the problem:
On 12/5/2018 at 3:47 AM, Ripples said:
I have got some car models from a freelancer that actually resemble the original cars.
A car that looks like a box on wheels is fine. You can make up your own designs from 1960's style to futuristic models. Do that all you want. Artists do that all the time, designing vehicles that looks like it belongs in the 1920s or 1960s or present day cars or future era flying cars. They can use reference photos to make them look like car of the era in general terms, made boxy or curvy or bubbly, made with tail fins or spoilers or other features of specific eras.
But when the designs begin to resemble actual cars the people who own the rights to that design can have a problem. A car that brings to mind a Bently Flying Spur, or a Ferrari GTO, or a Toyota Corolla, even if it isn't an exact match, can be enough that those who own the design think there is a chance for confusion. The more similar they appear, the higher the risk of a lawsuit. If a game has one car that happens to look vaguely like a 1950's Buick that is a relatively small risk. If a game has 15 cars that look like the entire set of cars from 1957 from all the manufacturers, that is a far more substantial risk.
Chances are good you cannot afford a lawsuit, even if a judge would ultimately decide they are dissimilar enough to not cause confusion or to violate any other IP law.
On 12/7/2018 at 9:12 AM, JulieMaru-chan said:
Aside from the fact that there's no such thing as not having a gray area when it comes to trademarks
There is ENORMOUS gray area.
Much of trademark law is based on the likelihood of confusion. Lawyers can argue back and forth about if a mark is likely to be confusing or not, but ultimately it is up to a judge. There are subjective questions about how distinctive a thing is, how closely related a thing is, how similar the things are. There are some factors that are easier to measure like evidence of actual confusion by people. And there are some that are mostly up to the skill of the lawyer, like intent of using the thing.
Trademark decisions are overturned and vacated relatively frequently, sometimes opening things up, sometimes shutting them down.
On 12/7/2018 at 9:12 AM, JulieMaru-chan said:
changing the car designs to prevent them from resembling the originals too much, changing the names entirely, and adding a disclaimer for good measure seems to me like a very responsibly cautious thing to do
Except they probably aren't the right thing, especially if the person who owns the IP decides to sue. There are many different IP laws that can be used, not just the big three of Trademark, Copyright, and Patent. By including a disclaimer, something like "This car that may look similar to a Ferrari really isn't a Ferrari", if Ferrari actually cares and brings it to a judge that can be used as evidence of intent and liklihood of confusion. That is, you clearly knew in advance and otherwise intended to make the thing look like Ferrari's car because you pointed out the similarities yourself when you launched the product.
When you see people put disclaimers like that, very often it is when product names are used for comparison after nominative use. This is done AFTER talking with lawyers. Nominative use is generally permitted when kept within certain bounds, although even that is generally discouraged both for legal reasons and for PR reasons.
But here's the thing: It is irresponsible to recommend anything other than "stay away from stuff you don't own and don't have permission to use."
There is no good way to recommend "copy another person's IP but change enough to make it look like you made up your own" that can be a good recommendation. Either make something entirely new and distinctive (this is a creative industry, after all) or properly license the thing you intend to use. Yes, some people do it and get away with it. Others get shut down hard, including to the point of bankruptcy. It is minefield that should be avoided. If someone really wants to navigate the minefield a good lawyer can help them find good paths, but even that is fraught with peril.