November 8, 2017
Is the Reproduction of a Branded Product in a Depiction of Real Life an Infringement?
AM General LLC, maker of HUMVEE®-branded vehicles, has sued Activision Blizzard, Inc., Activision Publishing, Inc., and Major League Gaming Corp. in the Southern District of New York for using AM General’s trademarks and trade dress in advertising and promotion of their Call of Duty® video games. The games allegedly feature AM General’s trademarks and vehicles bearing AM General’s trade dress prominently in their video games, which further led to the manufacture and sale of collateral toys and books.
According to the Complaint, AM General has licensed a number of video game manufacturers, including Infogrames Inc., Novalogic, Inc., Codemasters Software Company, Ltd., and THQ Inc. So it would appear that AM General is not opposed to their products appearing in video games, just in video games for which they do not get paid.
AM General alleges that the defendants’ use of its trade dress and marks in connection with the advertising, promotion, and sale of video games has caused and is likely to cause purchasers and potential purchasers to falsely believe that these products are associated with, are approved, licensed, or sponsored by AM General. With respect to toys, AM General might have a point. However, with respect to the video games themselves, it is possible that purchasers and potential purchasers will simply think that the games are realistic depictions of the battlefield where AM General’s products are used.
In S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., the 9th Circuit found that the depiction of plaintiff’s L.A. “gentlemen club” PLAY PEN as a virtual strip club called Pig Pen in GTA: San Andreas did not infringe plaintiff’s rights. The Ninth Circuit found that the First Amendment protects an artistic works’ use of a trademark, unless the use has no artistic relevance whatsoever, or unless it explicitly misleads as to the source or content of the work. The Ninth Circuit thought it was unlikely that the video game was produced by the plaintiff.
It would seem that AM General might have similar difficulties.
AM General made millions selling Humvees to the government for use on the battlefield. Does a video game manufacturer need permission to reproduce these vehicles in a depiction of the battlefield? Trademarks are a part of daily life, and if some of these trademarks are caught up in a representation of daily life, is the trademark owner really harmed?