Roughly three years ago, the makers behind the famous Humvee filed a lawsuit against the creators of Call of Duty.
As you should know, Call of Duty is one of the world’s largest game franchises and in a few of their games, they use Humvees to populate their levels where players can experience an idea of what actual modern warfare is like.
In most modern wars, especially ones where the US is involved, there are bound to be Humvees. They’re the most popular choice of light armoured utility vehicles and have essentially replaced the Jeep for all the jobs that it used to do.
The Humvee is an icon. Its shape is instantly recognisable with its sloped rear, Hummer-like appearance and Jeep-like grille. Just as it has become synonymous with warfare, it has been used in several Call of Duty games that cover any period of warfare where the Humvee was likely used.
Some of Call of Duty’s most successful games feature the Humvee, such as Call of Duty 4: Modern Warfare, Modern Warfare 2 and Black Ops II. The manufacturers of the Humvee, AM General, must have seen an opportunity to make some money and decided to sue.
AM General claimed that Call of Duty had “made billions of dollars by using AM General’s iconic HUMVEE® military vehicle…in eight Call of Duty video games, numerous ads, two toys, and several strategy guides.”
“Activision neither sought nor obtained permission from AM General to do so. Activision’s conduct constitutes, among other things, trademark and trade dress infringement under the Lanham Act.”
On the other hand, Activision (the makers of CoD) claimed that the case was “nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare”. How very American.
“AM General LLC (“AMG”), a government contractor that manufactured military “HMMWV” (or “Humvee”) vehicles for the U.S. military, seeks to use trademark law to control the mere depiction of those vehicles in Defendants’ fictional Call of Duty video games. The use of purported trademark rights to restrict the content of expressive works is dangerous under any circumstance. But the claims, in this case, are particularly egregious because they involve a U.S. military vehicle paid for by American taxpayers and deployed in every significant military conflict for the past three decades.”
“As such, Humvees are a fixture of the modern U.S. military and are a logical part of any attempt to tell an authentic story about modern war. Humvees also have cultural and historical significance that has absolutely nothing to do with AMG or its manufacturing process. To allow AMG to pursue its claims would run directly contrary to the First Amendment and give AMG a stranglehold on virtually any expressive depiction of 21st Century U.S. military history.”
A very fair point because if Humvee had won this absurd lawsuit, they would technically have every right to sue museums, history books, filmmakers and anyone else that did as little as mention the trademarked ‘HUMVEE®’ name. They would essentially be monetising history.
Anyway, it was a very interesting case and if AM General had one, it would have had huge ramifications on all kinds of industries and how they could portray modern warfare. However, in the end Call of Duty was not sued and AM General took a massive ‘L’.
Judge George Daniels ruled that “It was metaphysically possible for [Activision] to have produced video games without the presence of Humvees,” Daniels says. But they increase Call of Duty’s feeling of realism and serve a purpose beyond simply trading on the Humvee brand. “If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal.”
“Moreover, Call of Duty beats the “Polaroid factors” standards that determine whether a trademark’s use will confuse consumers. “Put simply, [AM General’s] purpose in using its mark is to sell vehicles to militaries, while [Activision’s] purpose is to create realistically simulating modern warfare video games for purchase by consumers.”
So basically, Activision did not include the Humvee to sell more copies of Call of Duty and also, using Humvees in the games will not have militaries scratching their heads thinking ‘wait, do Activision manufacture Humvees?’.
Thank goodness that this ridiculous lawsuit reached a rational conclusion! Judge George Daniels must be a gamer.
If you enjoyed this, you should check out our post on 6 cars that have awful depreciation that you should definitely not buy new!
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