Call Of Duty Games Allowed To Depict Humvees Without License

The popular Call of Duty video games is allowed to feature Humvees without having to obtain a license. So says a New York judge who ruled that Activision, publisher of the games, isn’t infringing trademarks protecting the vehicles. Developers viewed the ruling as a victory for using images to create a sense of realism in their games.

AM General, who makes Humvees, sued Activision in 2017. They complained that use of Humvees in the Call of Duty games misled players and others. Particularly, AM General claimed, players were duped into thinking the company licensed the video games. In turn, Activision argued it had a First Amendment right to depict actual military equipment used in war.

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Activision objected to the use of trademark law to stifle creative expression, but took special issue with the Humvees. The company noted that Humvees are paid for by American taxpayers and have been used in most modern conflicts. In this respect, the company believed there was nothing for trademark law to protect.

Judge George Daniels ruled that the games pass what is known as the Rogers test. This analysis dates back to a 1980s decision concerning the use of intellectual property in works of art. Under the test, a trademark is infringed where there is “no artistic relevance [of it] to the underlying work.” Or, where the use of the trademark explicitly misleads as to the source of the work. This is a difficult test for plaintiffs to pass.

The judge noted that it was certainly possible to produce the video game without use of the Humvees. However, the presence of the vehicles increases the sense of realism in the game. This goes beyond merely capitalizing off the Humvee brand name. Realism being an artistic goal, “[T]he presence in modern warfare games of vehicles employed by actual militaries…furthers that goal.”

Call of Duty also did not improperly use the Humvee trademark to confuse consumers. This required looking at the reasons why both companies use this trademark. AM General uses it to sell Humvees to the American military. On the other hand, Activision uses it to create realistic modern warfare video games. The difference in these purposes means consumers are not likely to be confused.

AM General had contended that Activision was knowingly infringing on its trademark. One piece of evidence to support this was the use of Humvees at promotional events for the video game. But the court decided this was not a convincing argument.

Hesitation over depicting actual firearms or military gear without approval was a real issue before this ruling. Although this case does not radically change any legal doctrines, it gives more creative freedom to video game makers.

Trademark issues often run up against First Amendment rights, as the Humvee case demonstrates. Whether you are the plaintiff or defendant in a trademark infringement case, you need skilled legal representation. A knowledgeable trademark attorney will be able to make the arguments for or against infringement. Your attorney has to know the correct legal analysis that will apply in your case, and how to argue it. Your lawyer should also be thoroughly familiar with the underlying facts, which will prove relevant in the analysis.

If You Have An Intellectual Property Matter, Turn To Eddington Worley

At Eddington & Worley, we draw on our extensive experience in prosecuting and defending intellectual property cases. If you’re facing an allegation that you’ve infringed on someone’s rights, or you believe someone else has, contact us. We can review the claims at issue and advise you of your legal rights.

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