What is a war video game without a realistic war environment? That is the question that Activision has asked in its successful defense against a trademark enforcement claim from AM General, the manufacturer of Humvees, who claimed that Activision was infringing on AM General’s marks by featuring Humvees in their Call of Duty video game. AM General sought to use the trademark laws to protect its intellectual property from unlicensed use in the video game, citing that Activision has payed fees in the past to license external IP for its video games and that, in the actual Call of Duty game, characters reference the Humvee directly. Their general claim was that players of Activision video games were subject to confusion and were “deceived into believing that AM General licenses the games.” This lawsuit carried massive implications for the video game industry as it seeks to establish itself with the same legal privileges as other types of works like books and movies that have been better protected from such trademark complaints. Video game studios were hoping for a major victory here to emphasize their right to create realistic visuals of the world without being met by a cascade of the intellectual property protection regime.
Well, Activision got their wish, as U.S. District Court Judge George B. Daniels submitted summary judgment in favor of the defendants. His opinion operated under the principle that “where the defendant’s product is artistic or expressive, courts have interpreted the Lanham Act narrowly in order to avoid suppressing protected speech under the First Amendment.” Judge Daniels employed the two-pronged Rogers test to examine the claim at hand, which finds that the balance between the trademark interest and the free speech interest will “normally not support application of the Lanham Act unless the use of the trademark has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the use of the trademark explicitly misleads as to the source or the content of the work.” As here, clearly, the trademark had at least an inkling of artistic relevance to the underlying work. As a result, the balance between AM General’s trademark interest and Activision’s free expression interest hung on the second Rogers prong—whether or not the use of the trademark explicitly misleads as to the source of the work. In evaluating the second prong, Judge Daniels held that the precedent shows “it is not enough that a likelihood of confusion exists; rather ‘the finding of the likelihood must be particularly compelling to outweigh the first amendment interest in Rogers.’” That likelihood of confusion should be evaluated under the Polaroid factors, coming from a seminal trademark case that established this eight-factor test for consumer confusion. In running through these factors, Judge Daniels argued that the use of Humvees in the video game had strong artistic relevance for creating a realistic depiction of warfare, and that there is not sufficient likelihood of confusion here. And while AM General argued that it shared a similar commercial purpose with Activision in the use of the Humvees, Judge Daniels refused to consider a general commercial purpose as grounds for reasonable confusion. “Put simply, Plaintiff’s purpose in using its mark is to sell vehicles to militaries, while Defendant’s purpose is to create realistically simulating modern warfare video games for purchase by consumers.” By narrowly defining the purpose of each firm in using the mark, the grounds on which confusion could be found shrunk considerably: “While both parties have the general “purpose” of selling products for profit, Plaintiff’s purported concept of shared purpose is far too abstract to argue reasonable confusion.” If this logic becomes precedent in similar future cases, it would be a huge legal victory for video game developers. The two sides employ the Humvee mark in drastically different mediums and consumer settings, and Judge Daniels was not impressed by AM General’s varied evidence including incomplete Activision records and a singular consumer survey. In the end, none of it was sufficient to meet the summary judgment standard and Activision’s defense prevailed.
Even though none of the parties disputed that the Humvee mark was obviously recognizable in the video games, Judge Daniels hammered home the point that “recognition is not confusion.” This is ultimately the key takeaway from the case that should be good news for artists and a stop sign for those who try to enforce their trademark generally without legitimate proof that consumers in the marketplace are being confused by the multiple uses of the mark. This case, thus, showed that an artist likely has a legitimate right to create a realistic work without infringing on the products and companies that make up the reality that is being mimicked in the work.[ref]
4. AM General, LLC v. Activision Blizzard, Inc., available at
https://www.documentcloud.org/documents/6823541-Humvee.html, at 7.
6. Id. at 8.
8. Id. at 13.
10. Id. at 12.
11. Id. at 13.[/ref]