How to License a Trademark: A Game Industry Guide

EA Sports has held an exclusive NFL trademark license since 2004. That deal was extended through 2030 in 2025. For over two decades, no other company has been able to make an NFL-branded football video game.

That’s the power of a single agreement to license a trademark.

But you don’t need to be a billion-dollar publisher to license a trademark. Board game publishers license brand names for themed editions like Star Trek Catan and Game of Thrones Catan. Indie developers get licenses to remake classic games. Gearbox granted a small team a license to remake Duke Nukem 3D.

If you make games, you’ll encounter trademark licensing on one side or the other. Get it right, and it’s a revenue engine. Get it wrong, and you can lose your trademark entirely through something called “naked licensing.”

This guide covers how it actually works, with specific focus on video game and board game scenarios. Whether you’re a brand owner looking to license out your mark or a developer trying to license someone else’s, I’m breaking down the practical details that most guides skip.

Quick Facts: Trademark Licensing

• License types: Exclusive and non-exclusive
• Royalty rate range: Usually 5-15% of gross or net receipts for entertainment/gaming
• Registration required: Not legally, but strongly recommended (USPTO federal registration, at least)
• Quality control: Legally required for the licensor (trademark owner), or risk losing the trademark (“naked license” doctrine)
• Agreement must include: Territory, duration, permitted use, royalty terms, quality control provisions

Key Definitions

Licensor: The trademark owner who grants permission to use their mark. In gaming, this could be the NFL licensing its team names to EA, or Catan GmbH licensing the Catan brand to regional publishers.

Licensee: The party receiving permission to use the mark. Think EA Sports using the NFL brand, or a board game publisher creating Star Trek Catan under license.

Naked License: A trademark license without adequate quality control. Courts treat this as trademark abandonment, meaning the owner might lose all rights to the mark permanently.

Royalty: The payment a licensee makes to the licensor for the right to use the trademark. Usually a percentage of either gross or net revenue (5-15% in gaming and entertainment) or a flat fee. For a deep dive into how royalty structures work in game publishing deals specifically, see our guide to video game royalties.

Minimum Guarantee: A guaranteed minimum Royalty payment to the licensor, which is either paid up front, broken up into payments according to a schedule, or just made at a certain point later on if the Royalties don’t meet the minimum.

Exclusive License: A license granting sole commercial rights to one licensee. EA’s NFL deal is the textbook example. No other publisher can make an NFL-branded football video game while that agreement is active. This favors licensees, since it gives them exclusive use of the license. Licensors may want to avoid exclusivity, in order to keep their options open.

What Is a Trademark License (and Why Gamers Should Care)?

Trademark vs. Copyright: Know What You’re Licensing

The confusion I see most often with game developers: they don’t know where trademark ends and copyright begins.

“Pokemon” the word mark and the Pikachu logo? Those are trademarks. The character art, game code, and music? That’s copyright. You often need licenses for both, and one doesn’t cover the other.

A trademark license is permission from a brand owner (the licensor) to use their name, logo, or brand identifier. The licensee pays for that permission, usually through royalties.

In essence, two main structures exist:

• Exclusive licenses grant sole commercial rights to one licensee, like the EA/NFL arrangement where only EA can make NFL games.
• Non-exclusive licenses allow multiple licensees, like Catan GmbH licensing to different publishers across different regions.

The exclusivity can be (and usually is) limited to specific product categories. For example, and exclusive license to make a video game usually means the licensor is only agreeing not to license it to other video game companies. They can use it in other product categories, such as films, toys, board games, apparel, etc.

The trap in gaming is treating these trademark licenses as interchangeable with copyright licenses. A developer could hold a copyright license to depict Batman in their game but not have the trademark license to use “Batman” in the game’s title or marketing.

When One License Isn’t Enough

Games often require multiple separate licenses: trademark for the name and logo, copyright for the creative content, sometimes music sync licenses, sometimes right of publicity clearances for real people. Usually these are in the same agreement if they’re owned by the same licensor. However, Developers may need to enter licensing arrangements with several different rights holders just to ship a single game (someone owns the trademark, another owns particular character copyrights, and another party owns the music rights).

If you want to make a board game called “Catan: Space Edition,” you need a trademark license for the Catan name and a copyright license if you’re using any of the original game’s art or design elements. Again, these may be the same licensor, or they may be different.

“Catan: Disney” would involve multiple licensors, for example.

My recommendation: if you’re licensing IP for a game, ask your attorney to map out every IP right involved. Don’t assume one agreement covers everything.

The Naked License Trap: How to Lose Your Trademark by Licensing It

If you’re on the other end of things, where you are the trademark owner, pay attention to this one. Most trademark owners don’t realize this: licensing your trademark can actually destroy it.

This is the naked license doctrine.

When a trademark owner licenses the mark but doesn’t monitor or control how the licensee uses it, courts can rule the trademark is abandoned under the Lanham Act. The owner loses all rights to the mark.

The Three-Factor Test

Courts apply a three-factor test to determine whether adequate quality control exists:

• First, did the license agreement include quality control rights?
• Second, did the owner actually exercise those rights in practice?
• Third, did the owner reasonably rely on the licensee to maintain quality? All three matter.

What the Case Law Shows

The case law is brutal. In Eva’s Bridal v. Halanick Enterprises (7th Cir., 2011), there was no written agreement, no oversight, and no supervision. The court ruled the trademark abandoned. In FreecycleSunnyvale v. The Freecycle Network (9th Cir., 2010), the parties shared a mission and had mutual trust. That wasn’t enough. The court required actual monitoring.

This doctrine is not a relic. In Blue Mountain v. Bliss Nutraceuticals (2023), a complete absence of supervision or product inspection resulted in trademark abandonment. Courts continue to strictly enforce quality control requirements.

Older gamers know a perfect cautionary tale here: Superman 64 (1999). Titus Software licensed the Superman mark from DC for a video game. The game was notoriously terrible. Minimal quality control from DC led to lasting brand damage for Superman in the gaming space. This is exactly the scenario quality control provisions are designed to prevent.

If you’re licensing your trademark, quality control isn’t optional. It’s the difference between a revenue stream and losing your brand entirely.

Quality Control for Digital Games: What It Actually Looks Like

Quality control for a licensed t-shirt is straightforward. Check the fabric, check the print, approve the sample. Quality control for a licensed video game? That’s a different challenge, given the increased scope of things that can go wrong.

Adequate quality control mechanisms should be built into the licensing agreement from the start.

What to Require in Your Agreement

Require milestone approvals during development: concept, alpha, beta, gold master/release candidate. Include asset review rights so the licensor can see exactly how their brand appears in-game. Mandate build approval before commercial release.

The bar for quality control is not impossibly high. In Kentucky Fried Chicken v. Diversified Packaging Corp. (1977), KFC’s review and approval of packaging designs was enough to prevent a naked licensing finding, even though the procedures were relatively informal. The key is having a system and actually using it.

Post-Launch Monitoring

Digital products have monitoring advantages that physical products don’t. There’s version history. Licensors can audit through patch notes, screenshots, streaming footage, and app store reviews. But updates and patches mean the product can change after launch. The agreement needs to address post-launch modifications too.

Fortnite is the positive example here.

Epic Games licenses Marvel, Star Wars, and DC character skins. Brand integrity is maintained because Epic follows each licensor’s style guides for character depictions, submits assets for approval before release, and controls the in-game appearance.

Compare that to the Superman 64 disaster where quality control was essentially absent.

If you’re a licensor putting your brand on a digital product, your agreement needs to go beyond traditional physical product inspection clauses. Milestone reviews, asset approvals, and post-launch update provisions are the baseline.

Let’s Talk Money: Trademark Licensing Royalty Rates

Every article about trademark licensing mentions royalties exist. None of them tell you what percentage is normal. Here are real numbers.

Industry Rate Benchmarks

In my experience, Entertainment and game trademark licenses typically run 5-15% of net receipts. Consumer products fall in the 2-15% range.

Exclusive licenses command higher rates than non-exclusive. Brand strength, market position, and profitability all affect the negotiated rate.

Also, for some more high profile licenses, the license fee is based on gross rather than net. The reason being that the licensor has the negotiating strength to get their cut of revenue before any deductions are taken.

Licensees definitely need to build this into their financial projections and ensure the product is viable before entering into those licenses.

A Cautionary Tale: The D&D OGL Controversy

For a real-world benchmark on what “too high” looks like, consider the D&D Open Game License controversy. In 2023, Wizards of the Coast proposed a 25% royalty on companies grossing over $750,000 per year under the OGL.

The OGL is technically a content/copyright license, not a trademark license. D&D trademark rights require a completely separate agreement. But the royalty rate backlash is instructive for any type of licensing.

That 25% figure was wildly above industry norms. Over 66,000 people signed a petition, and WotC retreated, eventually releasing content under Creative Commons. Even if you have the legal right to set a rate, the market will tell you if it’s unreasonable.

Beyond Royalty Percentages

Beyond straight royalties, payment structures vary. Upfront licensing fees, minimum guarantees, milestone payments, and profit sharing are all common. Franchise-style agreements often combine an initial fee plus 5-9% of annual sales as ongoing royalties.

If you’re a licensee, start your negotiations at the industry median (5-10%) and justify any higher rate with the brand’s proven sales impact. If you’re a licensor, don’t get greedy. The D&D OGL debacle shows what happens when you overreach on rates.

You could end up not being able to license your trademark and other IP at all.

For more on how royalty structures and payment mechanics work in game publishing deals, see our guide to video game royalties.

Exclusive vs. Non-Exclusive Licenses: Choosing the Right Structure

EA’s exclusive NFL license means no competitor has made an NFL-branded football game in over 20 years. Meanwhile, the NBA rejected EA’s exclusive bid.

That created a competitive market where both EA and 2K competed. Two leagues, two licensing strategies, dramatically different outcomes for gamers and developers.

Two Structures, Two Strategies

The two license types break down like this.

Exclusive licenses give one licensee sole commercial rights. EA/NFL is the clearest example. The licensee invests heavily but market competition disappears.

Non-exclusive licenses allow multiple licensees. Think Catan licensing to different publishers in different regions, or Marvel or Lord of the Rings licensing their characters and trademarks to various game companies simultaneously.

Which One Is Right for You?

When does each make sense?

Exclusive works when the licensee will invest heavily in building the brand in a specific category, like sports games. Non-exclusive works when broad market penetration matters more than deep investment, like board game theme editions across regions.

The key tradeoff: exclusive licenses mean higher royalties but total dependency on one partner. If the licensee underperforms, the licensor is stuck until the contract ends. Non-exclusive means broader reach but less control and lower per-deal revenue.

Most game industry trademark deals are non-exclusive unless the licensee is willing to pay a premium for exclusivity and put some kind of benchmarks on their product success in order to keep the license.

How to Approach a Trademark Holder for a License

Most trademark licensing content is written for brand owners. If you’re a game developer who wants to license a trademark for your game, practical advice barely exists.

Here’s what actually works.

Research First

Before reaching out, understand the trademark holder’s existing licensing program, their brand guidelines, and their market positioning. Look up what class of goods their mark is registered in. Class 9 covers downloadable games, Class 28 covers physical game goods, Class 41 covers gaming services.

Many licensors have specific licensing contacts that you can use to reach out for these inquiries. Or you can find their trademark attorney (the attorney of record on their trademark registrations) and inquire with them.

Knowing this shows you’re serious and saves everyone time.

Prepare a Clear Proposal

Explain what you want to make, why it fits their brand, your business background, and your development track record. Include a concept overview, target market, timeline, and how you’ll maintain brand quality. Expect to demonstrate financial stability and insurance coverage.

Set Your Negotiation Expectations

Most trademark holders prefer non-exclusive licenses for broad categories. Be prepared for quality control requirements like milestone approvals and asset reviews.

Expect royalty discussions in the 5-15% range for entertainment and gaming. Exclusivity will cost significantly more.

Get Attorney Review Before Signing

Every game dev consult a lawyer before signing any deal involving IP rights, no matter what side you’re on.

You need to understand what rights you’re getting and what obligations you’re taking on. Is it a trademark license, a copyright license, or both?

If you want to license a brand for your game, lead with a professional proposal that shows you understand their brand. Trademark holders get approached constantly.

The developers who get deals are the ones who make it easy to say yes.

When You Should Not License a Trademark

Not every licensing deal is worth taking. Sometimes the smart move is walking away.

When Licensors Should Not License

Your trademark is too weak or unregistered. Common law marks have geographic limitations and enforcement challenges. You can’t commit to quality control, which means naked licensing risk. Or the proposed licensee’s product category could damage your brand reputation.

When Licensees Should Not License

The royalty rate is above industry norms and the brand doesn’t justify the premium. The quality control provisions are so restrictive they’ll slow your development to a crawl. The agreement requires you to assign (not just license) your own IP. Or the license terms can be changed unilaterally.

WotC’s attempt to revise the OGL retroactively blindsided publishers who had built entire businesses on the original terms. That backlash spawned the ORC Alliance, a coalition of hundreds of game companies backing an alternative open license.

Red Flags for Both Sides

No written agreement. Vague territory or duration terms. No termination provisions. Any pressure to skip attorney review.

A bad trademark license is worse than no license at all. If the terms don’t work, build your own brand instead.

Frequently Asked Questions

Do I need to register my trademark before licensing it?

You don’t legally have to, but you should. Common law trademarks have limited geographic protection, weaker enforcement options, and can’t give licensees certainty of ownership.

Federal registration through the USPTO gives you nationwide priority and stronger legal standing. Most sophisticated licensees will want to see a registration certificate before investing in your brand.

Can I license a trademark for a fan game or mod?

Usually not without permission. Even non-commercial fan projects can infringe a trademark. Some companies grant limited licenses for fan work, like Gearbox allowing a Duke Nukem 3D remake under a personal, non-commercial license. But this is the exception. Don’t assume a company’s tolerance of fan projects equals an actual license. If you want to use someone else’s trademark, get it in writing.

Do I need a trademark license to mention a brand in a game review?

No. Trademark law includes a fair use doctrine. Using a brand name to refer to the actual product (like reviewing “Madden NFL 26” or even comparing your game to another game using their name) is usually nominative fair use and doesn’t require a license.