By: Seth Bruneel,
The ears of any lawyer who even dabbles in video games will perk up at the mention of “Call of Duty” and their attention will be fully captured when the title of the popular video game is found in context with “lawsuit.” Such is the case here. The maker of Call of Duty, Activision, is being sued by AM General for trademark infringement. 
AM General owns the registered trademark “HMMWV” (Reg. No. 3026594), more commonly referred to as “HUMVEE” (Reg. NO. 1697530). AM General alleges that by using the vehicles and names in Call of Duty Activision “[w]rongfully leverag[es] the goodwill and reputation AM General has developed in these marks … in advertising and promotion of their Call of Duty video game franchise” and that Activision uses the trademarks in the “manufacture and sale of collateral toys and books to further derive wrongful profits.”
There is little room to dispute that Activision is using the trademark in the video games as shown in some of the pictures from AM General’s brief.  (In its brief (link) AM General provides further analysis of the similarities.)
Activision has yet to file an answer to the complaint but there are several defenses that would qualify their use of the trademarks as non-infringement including: lack of consumer confusion and fair-use. 
The main test for infringement of a trademark is the likelihood of confusion.  However, here Activision has a strong argument that there is not likelihood of confusion because there is no intent to confuse. In fact, the best defense to the idea that consumers will confuse the Call of Duty version of the HUMVEE and AM General’s HUMVEE is to admit that they are both the same vehicle. Activision will then need to show that the use of the trademark is an allowable use.
One such use would be if the use of HUMVEE was a fair-use. Activision’s use of the registered trademarks is fair use if an alleged infringer uses a mark solely to describe the trademark holder’s product, but not the alleged infringer’s produce, for purposes such as comparison, criticism, or simply a point of reference.  In this upcoming action, Activing is merely using the trademarked terms and likenesses to refer to AM General’s military vehicles without referring to any of Activision’s products so the trademarks are used simply as a point of reference.
Another way for Activision to escape liability is to claim a free-speech defense. Activision’s use of the trademarks can be free-speech if it meets the Rogers Test.  The Rogers test says that a “use of a trademark that would otherwise violate the Lanham Act is not actionable unless [use of the mark] has no artistic relevance to the underlying work whatsoever, or, if it same some artistic relevance, unless [it] explicitly misleads as to the source or content of the work”.  Here, it is likely that the court will find that Activision’s use of the trademarks HUMVEE and MMMWV has “at least some artistic relevance” so the court will have to decide if the use misleads consumers as to the source of the HUMVEEs.  It is on this second prong of the test that Activision will likely succeed because there is little argument that Call of Duty explicitly mislead consumers to believe that the HUMVEEs are made by Call of Duty, rather than AM General.
While it may seem Activision is likely to evade liability for using AM General’s trademarks in-game, Activision could be in real trouble with the toy products as the toys do much more than simply use HUMVEE as a point of reference.  The toys present a higher likelihood of confusion for consumers as they could see the military vehicle as a Call of Duty product rather than a product of American General.
The pending litigation is intriguing as it presents a confluence of commercial and artistic use. While I expect more practical solutions before a judge’s final ruling, it would be interesting to see if the courts are still likely to find that the use is artistic (thus, non-infringing) when the infringer gobbles up such massive amounts of commercial success as Call of Duty: Modern Warfare ($1.23 Billion). 
 Anandashankar Mazumdar, Humvee Maker Targets Activision’s ‘Call of Duty’ in Trademark Case, PATENT, TRADEMARK & COPYRIGHT J. BNA, (Nov. 10, 2017).
 Complaint at 1-2, AM General v. Activision Blizzard, (S.D.N.Y, Nov. 7, 2017) (No. 2:17-cv-08644).
 Id. at 5-7, 14-16, 20-22.
 Id. at 5-6, 16, 20, (Figs. 1, 2, 11, 12).
 Winthrop & Weinstine, Call of Duty Trademark Lawsuit: A Humvee Humdinger, DUETS BLOG (Nov. 15, 2017), https://www.jdsupra.com/legalnews/call-of-duty-trademark-lawsuit-a-humvee-30152/ (last visited Nov. 28, 2017).
 Lanham Act, 15 U.S.C. § 1114 (2017).
 See Winthrop, supra note 4.
 Id. at 1099-1101.
 See Muzumdar, supra note 1.
 Supra note 2, at 29.
 Tom Gernencer, How Much Money Has Every Call of Duty Game Made?, MONEYNATION (Dec. 23, 2015), http://moneynation.com/how-much-money-has-every-call-of-duty-game-made/ (last visited Nov. 28, 2017).
Image Source: http://www.gambitmag.com/2017/11/activision-getting-sued-humvee-use-call-duty/.