Year after year, Call of Duty is one of the top-selling video games on the market. Each entry in the series is the video game equivalent of a summer blockbuster.
The first-person shooter features over-the-top stories based on both classic and modern warfare. Early games in the franchise were set during World War II, but more recent entries have focused on fictional present-day and future conflicts.
While Call of Duty games often get inspiration from Hollywood action movies, they do feature real-life weapons and vehicles, which lend credibility to the product. The wider industry is notoriously friendly with the US military, which views video games as a recruitment tool.
AM General’s Humvee is one of the vehicles featured in Call of Duty games, although its use is unauthorized. As a result, the South Bend-based vehicle manufacturer sued Call of Duty‘s publisher, Activision, back in 2017.
Now Activision is trying to get the entire lawsuit thrown out. In a summary judgment motion filed on May 31, Activision claims that AM General is undermining its First Amendment rights.
This case is nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare. AM General LLC (“AMG”), a government contractor that manufactured military “HMMWV” (or “Humvee”) vehicles for the U.S. military, seeks to use trademark law to control the mere depiction of those vehicles in Defendants’ fictional Call of Duty video games. The use of purported trademark rights to restrict the content of expressive works is dangerous under any circumstance. But the claims in this case are particularly egregious because they involve a U.S. military vehicle paid for by American taxpayers and deployed in every significant military conflict for the past three decades.
As such, Humvees are a fixture of the modern U.S. military and are a logical part of any attempt to tell an authentic story about modern war. Humvees also have cultural and historical significance that has absolutely nothing to do with AMG or its manufacturing process. To allow AMG to pursue its claims would run directly contrary to the First Amendment and give AMG a stranglehold on virtually any expressive depiction of 21st Century U.S. military history.
AM General responded with their own court filing:
Defendants Activision Blizzard, Inc., Activision Publishing, Inc., and Major League Gaming Corp. (collectively, “Activision” or “Defendants”) have made billions of dollars by using AM General’s iconic HUMVEE® military vehicle and its distinctive trade dress (the “HUMVEE® Trade Dress”) in eight Call of Duty video games, numerous ads, two toys, and several strategy guides. Activision neither sought nor obtained permission from AM General to do so. Activision’s conduct constitutes, among other things, trademark and trade dress infringement under the Lanham Act.
It’s now up to a federal judge whether to allow the lawsuit to proceed or to dismiss it.