A New York judge ruled that publisher Activision is not infringing the trademark by filing Humvees in its Call of Duty series. The decision, made yesterday, is a mark in favor of game developers representing real military teams to create a sense of realism.
Humvee maker AM General sued Activision in 2017, alleging that Call of Duty players were “misled into believing that AM General authorizes the games.” Activision denied the claim, saying it had the First Amendment right to represent official military equipment in a war game. Using the trademark to control creative work was “dangerous under any circumstances,” his attorneys wrote, “but the claims in this case are particularly egregious because they involve a US military vehicle paid for by US taxpayers and deployed in every military conflict. significant in the past. ” three decades. “
District Court Judge George Daniels wrote that the Activision games passed the “Rogers test,” referring to a ruling from the 1980s about the use of trademark names in artwork. “It was metaphysically possible for [Activision] to have produced video games without the presence of Humvees,” says Daniels. But they enhance Call of Duty’s sense of realism and serve a purpose beyond simply trading under the Humvee brand. “If realism is an artistic goal, then the presence in modern war games of vehicles employed by the royal military undoubtedly furthers that goal.”
Additionally, Call of Duty exceeds “Polaroid factor” standards that determine whether using a brand will confuse consumers. “Simply put, the purpose of using their brand is to sell vehicles to the military, while the purpose of Activision is to create modern war games that realistically simulate for consumers to buy.”
As The Hollywood Reporter detailed last year, AM General claimed that Activision was deliberately infringing on the trademark, but some of the evidence was sealed. Ultimately, the court ruled that it was unconvincing, amounting only to references that Activision knew it was using the name Humvee, the presence of Humvees at some promotional events, and the repetitive text in a user manual.
The Humvee case does not reverse any legal doctrine. But for years, major studies hesitated to include real firearms or other military equipment without approval, though they began to drop official licensing deals in response to pressure from gun control advocates. In 2013 EA settled a lawsuit with helicopter maker Bell Textron about its Battlefield 3 game.
This is the second legal victory for a gaming studio this week, after publisher Take-Two prevailed in a lawsuit over whether he could represent LeBron James’ tattoos in the NBA 2K franchise.