Back in 2017 AM General, the manufacturer of the iconic Humvee, sued Activision over the military vehicle’s inclusion in the Call of Duty series. That case is still rumbling on, but Activision is now trying to have it dismissed as “nothing less than a direct attack on the First Amendment.”
As The Hollywood Reporter report, Activision’s filing last week begins with:
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’s response, submitted on the same day (May 31), meanwhile opens:
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 an interesting case, the outcome of which could have big ramifications not just for video games, but TV and film as well.
I’ve mainly just shared it here though because “a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare” is the most video game legal jargon imaginable.