Pinkerton Consulting & Investigations has issued a cease and desist letter to Rockstar Games and Take-Two Interactive for using the name and badge of the company in Red Dead Redemption 2.
The Pinkerton National Detective Agency was founded in 1850 by Allan Pinkerton, and was known for tracking famous western outlaws such as Jesse James, Butch Cassidy, and the Sundance Kid. The company is now known as Pinkerton Consulting & Investigations, a corporate risk management solutions organisation.
According to legal documents obtained by The Blast, on December 13, 2018, Pinkerton Consulting sent a cease and desist letter to Rockstar Games and Take-Two Interactive claiming that Red Dead Redemption 2 uses the trademarks of the company, including the Pinkerton Detective Badge, without permission. The company states that the game may make some falsely believe that Pinkerton Consulting was involved with the game’s development. The company also claims that the Pinkerton characters in the game “are used as villains, hunting the game’s protagonists.”
Pinkerton claims that the game “is likely to blur the distinctive character and tarnish the reputation of Pinkerton’s famous trademarks.” The company says that it is “willing to discuss a lump sum figure,” and claims that “an applicable percentage of each game sold is an appropriate royalty rate”, due to the “importance of the Pinkerton characters to the game story.”
Take-Two responded on December 18, but was sent another cease and desist letter on January 4, 2019 by Pinkerton Consulting, which claimed it is “prepared to protect its legal rights and Assets,” and “can do so through legal action or through discussions leading to an appropriate licensing agreement.”
Take-Two Interactive responded with a request for declaratory judgement on January 11, 2019, stating that the references to the company are protected by the First Amendment to the United States Constitution. “Creative works about the American West are permitted as a matter of law to include such real historical events, figures, and businesses,” Take-Two claims. “Historical fiction—television, movies, plays, books, and games—would suffer greatly if trademark claims like [Pinkerton Consulting’s] could even possibly succeed.”
Take-Two claims that that Pinkerton Consulting does not hold a current trademark registration for the badge in question with the U.S. Patent & Trademark Office. Take-Two also listed several pieces of popular culture that also make reference to the Pinkerton National Detective Agency, including television shows Wanted: Dead or Alive and The High Riders, films The Bounty Hunter and The Legend of Zorro, books Before Dawn and The Pinkerton Killers, and games BioShock Infinite and Poptropica.
“Historical fiction—television, movies, plays, books, and games—would suffer greatly if trademark claims like [Pinkerton Consulting’s] could even possibly succeed.”
A significant claim from Take-Two is that Pinkerton Detective Agency characters only appear in 10 missions in Red Dead Redemption 2, less than 10% of the total missions. After describing the missions, Take-Two claims that the game does not state, in words, that it is sponsored, affiliated with, associated with, or endorsed by Pinkerton Consulting or the Pinkerton National Detective Agency, and that the marketing material associated with the game does not mention the name.
Take-Two’s response concludes requesting that a judge find the game’s use of the Pinkerton Detective Agency does not infringe on any trademark, and requests that Pinkerton Consulting pay Take-Two’s legal fees relating to the case.