By Kevin Wenzel, GWU 2L
(Editor’s Note: The following appeared in eSports and the Law, a newsletter produced by Hackney Publications with support from Skadden.)
AM General, LLC, the company behind the Humvee military truck, has sued video game maker Activision Blizzard, Inc., over the use of Humvees in their “Call of Duty” video game series and associated tie-in products of the game franchise. In their initial complaint filed on November 11, 2017 in the Southern District of New York, AM General accused Activision of trademark infringement, trade dress infringement, false advertising, false designation of origin and dilution stemming from Activision’s use of AM General’s Humvee vehicles in its popular “Call of Duty” video game franchise.
In their complaint, AM General claims that Activision’s success has come at the expense of AM General, and consumers that are deceived into believing that AM general has granted a license to the game maker for the use of their intellectual property, and that they are involved in the creation of the popular video games. AM General also asserts that Activision has gone beyond including their intellectual property in seven of Activision’s video games in the franchise, also alleging that Activision has included Humvees in strategy guides to the games and licensed “Call of Duty” toys such as “Mega Bloks” toy Humvees. AM general mentions that other video games have secured a license from them to include their Humvee vehicles in expressive works, and in Activision not doing so but continuing to use Humvees in spite of not having a license it would imply to consumers that AM General has approved the use of their intellectual property within Call of Duty games.
Activision responded by filing a motion for summary judgment on the case, calling AM General’s lawsuit an attack on the First Amendment, and that “to allow AMG to pursue its claim would run directly contrary to the First Amendment and give AMG a stranglehold on virtually any expressive depiction of 21st-century U.S. military history”. Activision contends that their Call of Duty video games are subject to First Amendment protections afforded to expressive works, and that “the limited depictions of Humvees in the games (less than ten minutes out of more than 35 hours of gameplay) are artistically relevant to these games.”
“Call of Duty” is one of the most commercially successful video game franchises in the world, selling more than 300 million copies globally. Activision has just recently released its latest title in the series, “Call of Duty: Modern Warfare” on October 25th, 2019.
The case pits Activision’s First Amendment rights of free expression directly against AM General’s trademark rights with regards to expressive entertainment works. Previously, in the case of Rogers v. Grimaldi, the Second Circuit held that the “balance [between trademark rights and the First Amendment will normally not support application of the [Lanham] Act unless  the title has no artistic relevance to the underlying work whatsoever, or,  if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.” Much of Activision’s argument hinges on their assertion that their work falls within the protections afforded by the case, and that AM General cannot satisfy the Rogers v. Grimaldi test to prevail on their claim.
AM General’s case draws several parallels to a lawsuit filed by Bell Helicopter against Electronic Arts, Inc. in 2012 regarding the use of Bell’s Cobra Helicopter in Electronic Art’s first-person shooter title ‘Battlefield 3’. Although the case was settled without a ruling, it is worth noting that Electronic Arts took a similar stance to that of Activision’s in that expressive works, in this case video games, are afforded First Amendment protections that allowed the company to feature realistic depictions of Bell’s military vehicles in their game.
Case: AM General LLC v. Activision Blizzard, Inc., No. 1:17-cv-08644-GBD-JLC (S.D.N.Y. filed Nov. 11, 2017)