Humvee Case Against Call of Duty Maker Crashes and Burns
Headline: On March 31, 2020, the Southern District of New York granted summary judgment to defendants Activision Blizzard, Inc., Activision Publishing , Inc., and Major League Gaming Corp. in a trademark suit over Activision’s depiction of Humvees in the Call of Duty video game franchise.
Background: Defendants’ first-person shooter Call of Duty video game franchise focuses on depicting combat in various wars. Plaintiff AM General—the maker of Humvee military vehicles—alleged that depicting Humvees in Call of Duty caused players to be deceived into believing that AM General licensed or endorsed the games.
AM General Humvee (from complaint)
Call of Duty Humvee (from complaint)
Plaintiff also alleged that Humvees were used by defendants in their advertising for the games, in merchandising (including toy Humvees and strategy guides), and in a real-life promotional event for the game, where Activition allegedly used Humvees with Call of Duty branding.
(Alleged advertising from Complaint)
(Alleged merchandising from Complaint)
Defendants asserted that the First Amendment barred liability for depicting actual military equipment in a war game, which Defendants argued was artistically relevant and not misleading because there was no evidence of any consumer who was actually confused and Activision does not directly compete with AM General.
Holding: The Court agreed with defendants, holding that they were not liable for trademark infringement under the Rogers test (Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)) because (1) the use of the trademark has artistic relevance to the underlying work, and (2) defendants were not explicitly misleading as to the source or content of the work.
First, the Court found that Defendants’ uses of Humvees in Call of Duty games had artistic relevance because featuring actual vehicles used by military operations around the world in video games about simulated modern warfare evokes a sense of realism and lifelikeness to the player.
Second, the Court found that the use of the Humvee mark was not explicitly misleading by considering the Polaroid factors (Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961)). Among the factors favoring Defendants were that:
AM General used the mark to sell vehicles to the military, while Activision used the mark to create realistically modern warfare video games for purchase by consumers.
There was no evidence that AM General was likely to enter the video game industry or that consumers would expect it to do so.
Purchasers of Humvees—militaries from around the world—were not buying Call of Duty games, and vice versa, so there was no risk that someone would buy the wrong product by accident.
Practical Takeaways: This case affirms, as others have, that striving for realism in a video game by including real-life products has artistic relevance. This case also shows the extent of protection afforded under the Rogers test for realistic games, even where extensive use was made of another company’s product. Activision’s use of the Humvees, however, went beyond merely using them in the game itself, and extended to advertising, merchandising and promotion of the game—leading many to wonder if the use went too far to pass the Rogers test. This may be the reason why, unlike other cases that have been dismissed at the outset under Rogers, this case was litigated for nearly two and a half years and resolved only through summary judgment rather than an early motion to dismiss.
A copy of the summary judgment opinion and order in AM Gen. LLC v. Activision Blizzard, Inc. et al., Case. No. 17-CV-8644 (S.D.N.Y.) is located here.
By Sean Apple, the “Syborg”