Free Speech Protects “Call of Duty” Game Makers in Humvee Case
Steven T. Lowe
On March 31, 2020 a federal district judge in the Southern District of New York delivered a ruling in favor of Activision Blizzard, holding that automaker AM General cannot sue for trademark infringement for incorporating Humvees into the gameplay of the popular video game, “Call of Duty.”
Back in November of 2017, plaintiff AM General LLC filed a complaint against defendants Activision Blizzard, Inc., Activision Publishing, Inc., and Major League Gaming Corp. in the US District Court for the Southern District of New York for trademark infringement, pursuant to federal and New York state laws. The complaint alleged that, without AM General’s permission, its famous Humvees are featured—either prominently or as backdrop elements—in numerous Call of Duty games. The complaint further asserted that the defendants have “reaped billions of dollars in revenues” as a result of the infringement of their intellectual property. Additionally, AM General complained that the defendants “expressly misled” the public as to the company’s involvement with the game and diluted the reputation of its Humvee’s iconic marks.
In May of 2019, the defendants moved for summary judgments on all of AM General’s claims and this past March, Judge George B. Daniels granted the motion, thereby dismissing the case.
In his opinion, Daniels found that, since the U.S. Department of Defense first awarded AM General a contract to build Humvees—High Mobility Multipurpose Wheeled Vehicles—the car has become a “backbone” of U.S. military operations and an iconic symbol of American armed forces. The well-known Call of Duty franchise, in turn, is a first-person shooter series that is characterized by its realism and cinematic set-pieces.
It is well established that when a defendant’s creative product is artistic or expressive, it is protected under the First Amendment. Furthermore, under a doctrine referred to as the “Rogers test,” courts follow a two-pronged analysis to determine liability for the unauthorized use of trademarks that appear in creative projects; essentially that law breaks down to this: unless the use of a trademark has no artistic relevance or explicitly misleads consumers, First Amendment speech protections will oftentimes outweigh trademarks interests.
Applying the Rogers framework, the court determined that Activision Blizzard’s uses of the Humvee name and design “easily” met the artistic relevance requirement by advancing the game maker’s purpose of realistically depicting military combat. The court continued, “if realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal.”
The court also concluded that the uses of Humvees in the Call of Duty games are “not explicitly misleading” after considering eight factors (known as the Polaroid factors) to evaluate consumer confusion.
Unable to offer anything more than some “metaphysical doubt” as to the facts presented by the defendants, AM General could not overcome the summary judgement motion and its infringement claims did not hold up in court.
AM General is represented by Robert M. Schwartz, Michael B. Carlinsky and Cory D. Struble of Quinn Emanuel Urquhart & Sullivan LLP.
Activision is represented by Karin G. Pagnanelli, Bradley James Mullins and Marc E. Mayer of Mitchell Silberberg & Knupp LLP.
The case is AM General LLC v. Activision Blizzard Inc. et al., case number 2:17-cv-08644, in the U.S. District Court for the Southern District of New York.