Adjunct Professor David Jacoby wrote an article published in Law360 about the trademark infringement case involving the use of the Humvee name and likeness in the highly popular Call of Duty video game series.
The defendant Activision Blizzard is the maker of the hugely successful Call of Duty series of video games, which, since 2003, have provided simulated but realistic battlefields on which video warriors fight in settings ranging from World War II to the present and on into the future. The vehicles in some Call of Duty games include Humvees. Activision also granted licenses to use content from the games, including the Humvee vehicle, in strategy guides and for toys.
AM General’s complaint asserts that the Humvee’s inclusion in Call of Duty constitutes trademark infringement, trade dress infringement, false designation of origin and false advertising under the Lanham Act and New York common law, as well as violating New York’s anti-dilution statute, N.Y. General Business Law Section 360-l. AM General says the vehicle is “unavoidable and pervasive” in the games, with the Humvee intellectual property appearing 228 times, as well as in online and television ads and at live promotional events.
By contrast, Activision asserts that the Humvee plays only a minor role in the games. It claims the vehicle appears in only 10 minutes of the 35 hours of possible game play. In any event, Activision says its depiction is First Amendment-protected expression.