District Judge George B. Daniels dismissed the lawsuit filed by AM General over Activision’s usage of the vehicle manufacturer’s Humvees in Call of Duty games, on the basis of realism in the portrayal of modern warfare.
In the lawsuit filed in 2017, AM General alleged that Call of Duty 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.” The vehicle manufacturer complained that Activision did not have the license to use images of the Humvees in Call of Duty games.
The ruling by Daniels, which junks AM General’s lawsuit, takes into account several factors, including the “Rogers test” based on a 1989 case, which established that trademarks may be used in artistic works without facing liability. Humvees had “artistic relevance” in the Call of Duty games as they helped simulate modern warfare, Techspot reported.
Daniels also applied the “Polaroid test” based on a 1961 case to determine whether the Humvees in Call of Duty games resulted in “explicit misleading” that would lead people to buy the wrong thing. The ruling said that those looking to buy a Humvee will not be confused and buy a Call of Duty game instead, and vice versa.
“If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal,” according to Daniels. Even if there is some brand confusion, in this case with AM General’s connection with Call of Duty, that is not enough grounds to override video games’ protections under the First Amendment, according to Ars Technica.
The ruling for AM General’s lawsuit against Activision may have more consequences beyond the Call of Duty series though. According to GTPlanet, developers making racing games could use the ruling so that they will not have to secure expensive licenses for registered trademarks.
Currently, studios and publishers need to negotiate with vehicle manufacturers, circuit owners, and racing teams to feature them in their games. With video games ruled as artistic works, GTPlanet said that licensing hurdles may be a thing of the past for racing games.
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