Hi, and welcome back to Legal Geek. This week, we cover a lawsuit where Activision Blizzard is invoking free speech protection and remind you about the awesome events happening at GenCon this week.
As covered on The Instance and other news outlets, Blizzard co-founder Frank Pearce is leaving the company, so change is in the air at Activision Blizzard. But one thing that never changes is the fact that this company is always in interesting litigations, including the Warcraft-Diablo related patent case we covered last week.
This week, we cover a different type of lawsuit, that being a trademark infringement lawsuit brought by AM General, the maker of Humvee vehicles, against Activision for showing these same vehicles in the Call of Duty game series. AM General filed this lawsuit in late 2017, claiming that the unauthorized use of images of their Humvee vehicles in Call of Duty games has allowed Activision to reap billions of dollars off the goodwill of their company.
While we have seen similar claims in recent segments on personality rights such as those related to iconic dance moves, in the trademark infringement context, these legal claims are much harder to win. This is in part because U.S. courts have used First Amendment concerns to hold that trademark owners cannot sue over use of their brands in creative works unless the marks are completely irrelevant to the work, or if the author expressly misleads consumers. This is an interesting use of First Amendment protections, as they do not normally apply between two private non-government parties.
So for example, it's easy to sue if you put a branded cereal box in a TV sitcom scene without authorization, as any old cereal box could have been used in most cases, but that is not the context here. AM General has supplied the US military with Humvees for nearly 40 years, and that has made the vehicle a fixture in war movies, telecasts, and news shows. So in this context of war video games, Activision is able to make the case that Humvees are artistically relevant to these games. So the first exception of the mark being completely irrelevant to the creative work does not apply. Plus the use of Humvees is minimal in the overall context of the game being reviewed, being on screen for 10 minutes out of about 35 hours of game play.
The other factor of consumer misleading is also likely not pertinent here, as Activision does not draw any association with AM General as the source of the games. So in this context, the Bottom Line is: AM General probably loses this trademark lawsuit based on First Amendment free speech protections, an interesting shield for a company like Activision in this circumstance. Never doubt the ability of Activision Blizzard to remain getting in interesting lawsuits, though.
A final special note since this is GenCon week in Indianapolis. You can find the Legal Geek seminars on Thursday at 1 PM in the Crowne Plaza hotel and on Friday at 10 AM in the JW Marriott hotel. Friend of the show Justin Robert Young is also putting on a couple seminars, and you can check those out in the convention center on Friday at 8 PM and on Saturday at 10 AM. Please reach out on Twitter if you want to track us down this weekend.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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