In late 2017 we published our initial article discussing the pending case of a trademark lawsuit brought by AM General LLC, owners of the Humvee brand of multipurpose military vehicles, against Activision Blizzard Inc. (Blizzard), makers of the popular “Call of Duty” video game franchise. The lawsuit claimed that Blizzard infringed on AM General’s trademark and goodwill in the ‘Humvee’ and “HMMWV” name by featuring the marks throughout the “Call of Duty” franchise without permission. Blizzard argument was that the games are created expression protected by the First Amendment, especially since the entire point of the Call of Duty franchise is to accurately depict warfare in an artistic fashion, and since Humvees are an actual brand of military vehicles, the depiction of the mark in the game is necessary for an accurate portrayal of wartime affairs.
The case, which was filed in the United States District Court for the Southern District of New York, was presided over by Judge George B. Daniels. Both AM General and Blizzard filed motions for summary judgment. This simply means that both parties asked the court to rule in its favor on the grounds that they believe that there are no important facts in dispute, and therefore, based solely on the law, they each believe that a judgment could be granted in their favor without having to go to a jury.
Judge Daniels’ actually ruled in favor of Blizzard, discussing several reasons why AM General failed to prove their case. One of the most interesting reasons Judge Daniels’ gave was that while neither party disputed the validity of AM General’s marks, there is no likelihood of confusion because AM General “has presented no evidence that it is likely to enter the video game industry let alone evidence that consumers would expect it to do so.” Additionally, AM General failed to reasonably show that Blizzard made any statements that were “likely to cause consumers [to have] ‘confusion as to the origin or sponsorship of [its] goods.’”
The judge essentially ruled in favor of Blizzard on the basis of the First Amendment, stating that AM General “failed to show that the presence of Humvees in the Call of Duty games will tarnish or blur [AM General’s] and [Blizzard’s] trademarks. To the extent that any dilution might occur, it must be “tolerated in the interest of maintaining broad opportunities for expression.”” He also mentions that not only did both parties agree that at least “some of the vehicles in the Call of Duty Games are representative of those that a real-life soldier would expect to see in the time and place depicted,” but that even if there was “a modicum of confusion” present here, that AM General still “failed to present sufficient evidence” to defeat Blizzard’s “persuasive explanation” that “the uses of Humvees in the Call of Duty games enhance the games’ realism,” and have failed to present sufficient evidence to win this case.
The judge seems to understand the significance of having this kind of realistic expression in art forms, saying that:
“If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal. The inclusions of Humvees in the foreground or background of various scenes—including several instances of players using Humvees to advance to the next level—are integral elements of a video game because they “communicate ideas … through features distinctive to the medium . . . Further, assuming arguendo that realism is the only artistic interest that Call of Duty games possess—an assumption potentially belied by the presence of narrative campaign modes in all of the challenged games—it is also true that realism can have artistic merit in itself.”
You can check out Judge Daniels’ decision on this case here.