Activision First Amendment Rights Trump Trademark Infringement Claim

Call_of_Duty_GhostsActivision’s Call of Duty video game franchise has been incredibly successful. It is a highly detailed, military style game that attempts to deliver a realistic combat experience by incorporating real weapons and equipment. This realism includes the ability to customize a player’s combat uniform, right down to the patches worn by the combatant. Such extreme realism enhances the player’s experience, but one company claims that Activision’s use of its patch is a little too real and infringes on its trademark registration. But a U.S. District Court in California doesn’t see it this way.

Mil-Spec Monkey, Inc. is a military supply and outfitting company. It is also the owner of a trademark registration for a logo depicting an angry monkey, the same logo that is used in the video game Call of Duty: Ghosts. The groups filed a trademark application on the logo in 2009 and received a trademark registration in 2011. After discovering Activision’s use of the logo in Ghosts, Mil-Spec filed a lawsuit alleging that Call of Duty: Ghosts infringed Mil-Spec’s trademark rights and that the logo and patch could not be used without Mil-Spec’s permission.

Activision responded motion for partial summary judgment alleging that its use of the angry monkey logo in the game was protected under first amendment free speech rights. Activision alleged that there was not a likelihood of consumer confusion and its use of the registered logo was merely a depiction of real life, not an attempt to play off the angry monkey brand. The court agreed with Activision and concluded that the trademark was not used in a misleading manner and that there was not a likelihood of confusion.

This situation is similar to a recent case involving an Alabama artist that used the University of Alabama’s Crimson Tide logo in his paintings, which he offered for sale. The paintings were of historical Alabama football events. The University of Alabama sued the artist for trademark infringement, the attorneys for Alabama claimed that he was not authorized to use the logo in his commercial paintings. The court ruled that the artist’s use of the university’s registered trademark was protected under the first amendment.

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