For those of you that are unaware, the company that made the recognizable military Humvee is called AM General. It built and has serviced nearly 300,000 Humvee units over the vehicle’s nearly three decades of deployment. Activision Blizzard is an entertainment company that creates video games, including the popular first-person shooter series called, Call of Duty. AM General is suing Activision Blizzard for using a representation of the Humvee in its video games without permission.
AM General’s Humvee began life specifically for military service. It would later become the basis for the whole Hummer brand as the Humvee was converted for civilian use in the form of a high end, do everything, SUV. But, the military version has become iconic because it kept being plastered on news clips with every update of the middle-east conflicts since 1990. It will continue to serve in service through 2050 even though its replacement is already in the field.
Since the 1990s, Activision Blizzard has been capitalizing on growing the first-person shooter video game market. To make their games more believable, they often depict gear and equipment that is straight from the battlefield into their games. This includes their depiction of the Humvee.
AM General launched a lawsuit in 2017 against Activision Blizzard, claiming that Activision did not receive licensing permission to use the Humvee in their game. Furthermore, AM General claims the consumers can be “deceived into believing that AM General licenses the games or is somehow connected with or involved in the creation of the games.” This boils down to a case of patent infringement, and they are seeking damages.
On April 1, 2020, Law360.com reported that the judge in the case ended the “Call of Duty” Humvee case. In the ruling, US District Judge, George Daniels, indicated that Activision Blizzard could not be sued for trademark infringement because the First Amendment protects them. The goal was to have an artistic representation of what happens or can be seen in actual battlefields.
One can assume that the key in the judge’s ruling against AM General was the term “artistic”, which does fall under the free expression concerns covered by the first amendment. I am not in, nor am I associated with the legal field. However, it seems to me that this ruling will open up a pandora’s box. What would stop any publisher of digital or other media from covering up labels and badges of a product and claiming they are using artistic representations of real-life vehicles, or any product? What’s the point of trademarks if anybody can claim artistic expression?
Probably Not The End
We have not heard the end of this matter. Both companies have deep pockets and have shown they can protract the case out as long as necessary for their purposes. It is now 2020, three years after the initial filing. I would not be surprised to hear the ruling gets appealed and sent to the Supreme Court.