Activision can use Humvee in its games care of the First Amendment
posted Saturday Apr 4, 2020 by Scott Ertz
The Humvee is an iconic vehicle, especially regarding wartime imagery. Because of this, Activision has featured the vehicle in many of its Call of Duty titles over the years. Since the intention of the company's popular games is to replicate the environments and experiences of the battles that they represent, it is a logical move to include these vehicles. Unfortunately for Activision, AMG, who holds the trademark on the design, did not believe that including the vehicles in the games was in compliance with the law.
In 2017, the company filed a trademark infringement suit against Activision, claiming that players were being "deceived into believing that AM General licenses the games or is somehow connected with or involved in the creation of the games." It's not outlandish, considering game developers often acquire licensing for their in-game items, such as vehicles and weapons.
This week, a federal judge ruled that Activision did not require a license to include the Humvee in the games because there was no implied licensing in the game. The including of the vehicles was not an active aspect of the game, in the way that it would be for a racing game. The inclusion of the vehicles, even according to an AMG-sponsored survey, only resulted in 16 percent of gamers believing that AMG was officially involved in the game, a percentage that the judge said only led to "some confusion" which is not enough to warrant action.
The ruling falls in line with a 1989 precedent which allows for artistic works to include external trademarked content, so long as the inclusion was relevant to the piece. The inclusion of a vehicle designed for military use in a game that replicates military scenarios for which the vehicle would have been used in real life is not just relevant, but essential. District Judge George B. Daniels wrote,
If realism is an artistic goal, then the presence in Modern Warfare games of vehicles employed by actual militaries undoubtedly furthers that goal.
