This is not the first time that these two parties have met in court. Back in 2008, Textron and Electronic Arts were involved in litigation over the use of intellectual property in EA's Battlefield 2: Bad Company 2- Vietnam. The parties settled out of court that same year, and in 2010, Electronic Arts entered an agreement with Textron to license intellectual property for its preexisting Battlefield games. In 2011, Electronic Arts sent Textron a letter stating that they intended to use the helicopters in Battlefield 3, however Textron did not believe that this game was covered under the settlement agreement. Electronic Arts then determined that it did not need a license agreement for the helicopters in Battlefield 3 because it considered its usage expressive, and therefor protected by the 1st Amendment. Textron responded by sending Electronic Arts a cease and desist letter, threatening legal action. Electronic Arts filed its action for declaratory relief for non-infringement on January 6, 2012. On February 24, 2012, Textron filed a competing suit in the Northern District of Texas against Electronic Arts for trademark infringement and false designation of origin under the Lanham Act, unfair competition and misappropriation, and injury to trademarks.
On April 27, 2012, Judge William Alsup of the Northern California District Court denied Textron's motion to dismiss, stay, or transfer the action. Textron argued that Electronic Arts had engaged in a race to the courthouse and forum shopping when it filed for declaratory judgment. The Judge reasoned that Electronic Arts acted to seek a determination of its rights and that it did not have to wait until Textron decided to sue. The court further rejected Textron's argument that Electronic Arts engaged in forum shopping.