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AM General LLC v Activision Blizzard Inc et al, 
FIled November 7, 2017, SDNY, No. 17-08644.

AM General—the maker of HUMVEE vehicles—has sued Activision over Call of Duty’s inclusion of HUMVEE vehicles in various Call of Duty games. AM General claims trademark and trade dress infringement, among others. The complaint specifically mentions eight Call of Duty games, including Modern Warfare, Black Ops II, Ghosts, and Heroes. In addition to the video games themselves, the complaint also alleges infringement by the Call of Duty series of Mega Bloks and BradyGames strategy guides.

Image source - wikia
According to the complaint, the use of HUMVEE vehicles throughout the Call of Duty series is unauthorized. There are several issues at play in a case like this. Trademark and trade dress rights—which AM General is asserting here—are often at issue in video games. If the use of a mark creates a likelihood of confusion or dilutes/tarnishes the mark, it may be trademark infringement.

Regarding likelihood of confusion, AM General claims that the appearance of their HUMVEE vehicles in Call of Duty games implies that AM General endorsed or sponsored the Call of Duty games. And for a massively successful franchise like this one—according to the complaint, the Call of Duty franchise has generated more than $5.2 billion in revenue—AM General obviously would be interested in the revenue generated by such a license. One issue may be whether in some cases consumers would be more likely to assume the mark owner endorses the mark’s use when the mark appears in a big budget AAA game—like Call of Duty—which might weigh in favor of likelihood of confusion.

Another typical issue in these types of cases is whether the use of a particular product—e.g., a real-life vehicle—in a video game might dilute or tarnish a trademark protecting that product. The threat of tarnishment arises when use of a mark “conjure[s] associations that clash with the associations generated by the owner’s lawful use of the mark.” L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 31 (1st Cir. 1987). For example, if players can use HUMVEE vehicles in the game to run people over, AM General might see that as tarnishing the HUMVEE mark.

Dilution occurs when a mark is used in a context other than the original context of the protected mark. Since real-life HUMVEE vehicles are specifically designed for use in war zones, Activision might argue that a video game depicting the use of HUMVEE vehicles in a war zone may not tarnish or dilute marks protecting those vehicles.

Another typical defense for video game developers is that the mark’s use is functional. When the mark’s use is functional or serving “other than a trade-mark purpose,” a mark holder might not have a winning infringement claim.

Activision’s lawyers have not yet responded to the call of duty—at least in answering AM General’s complaint. But when they do, some of these defenses will likely be weapons in their arsenal. In the meantime, let us know below whether you agree or disagree with AM General’s claims against Activision.

Thanks to Greg Israelsen for preparing this article.
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