The realism of video games is intensified by the inclusion of products and brands we recognize from daily life. Can the thrill of such verisimilitude coexist alongside the rights of trademark owners?

Activision Blizzard makes one of the world’s most popular videogames. Call of Duty is actually a series, currently comprising 15 “core game” titles, all of them featuring first-person military action: The player takes control of a soldier and fights in a specific conflict—ranging from World War II to combat in the “far future.” One of the tenets of Call of Duty is to provide a realistic portrayal of what the conflict would be like during the specified time period.

In 2017, AM General, the maker of the well-known Humvee military vehicles, filed suit in federal court in New York City alleging that the realistic depiction of those vehicles in Call of Duty infringes on its registered Humvee trademarks and trade dress rights. AMG, a government contractor, has manufactured more than 278,000 Humvees, which have been used by the armed forces in every significant military conflict for over three decades.

In eight of the Call of Duty titles, the vehicle can be seen and interacted with during gameplay or characters in the game refer to it by name. In Call of Duty: Modern Warfare 3, for example, a character says, “One of the Humvees has been hit.”

Activision Blizzard has used the Humvee in advertising and promotion of the video game. The trailer for Call of Duty: Modern Warfare 2, for example, shows several soldiers getting into a Humvee, and other trailers display a Humvee either being driven or blown up.

All of this, AMG argues, will lead consumers to believe there is some affiliation or sponsorship between AMG and Activision. On this basis, AMG has asserted trademark infringement, false advertising, and trademark dilution.

Activision does not deny that the Humvee is named and depicted in several of its games. The point of contention is whether Activision has a right to use AMG’s marks in trying to illustrate warfare realistically. The ramifications of a finding of infringement in AM General v. Activision Blizzard could be far-reaching, potentially affecting any video game, or other expressive work, that attempts to inject realism into its narrative.

Indeed, in its May 2019 motion for summary judgment, Activision said that AMG’s lawsuit “is nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare.” Call of Duty, says Activision, is an expressive work attempting to accurately depict modern warfare. Humvee vehicles have been deployed widely in modern warfare, so their inclusion in a videogame about contemporary military conflict represents nothing more than a realistic depiction in an expressive work.

With free expression under the First Amendment at stake, Activision argues that AMG’s trademark rights, asserted under the Lanham Act, should be read narrowly to avoid suppressing speech.

In the Second Circuit, where this case is pending, the standard for balancing trademarks against First Amendment rights is known as the Rogers test, named for Rogers v. Grimaldi (1989). Under that test, the balance between trademark rights and the First Amendment “will normally not support application of the Lanham Act unless [1] the use of the plaintiff’s name [or in the case of AM General, its trademark] has no artistic relevance to the underlying work whatsoever. Or [2] if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.”

For the references to Humvee’s marks to have “no artistic relevance,” as required by the first prong of this test, their inclusion in the games would have to serve no purpose within the expressive work--the gameplay—other than as a reference to the brand.

Activision of course raises the banner of artistic relevance: In its Call of Duty games, Humvee vehicles are shown in the same places and situations as they would be in the real world. These references are an attempt to portray modern warfare authentically.

As to the second prong, Activision argues that the depiction is not explicitly misleading, as it involves no assertion or implication of AMG’s sponsorship or affiliation.

Time will tell how the court will rule on Activision’s motion. The impact of a finding of infringement could be deep. Other video games could be precluded from depicting any brand or source identifiers, potentially chilling attempts to make such games in the first place. Taken to its extreme, this effect could extend to other expressive works, like movies and television programs that also deploy brands to show the world realistically.

Because of these implications, both the Entertainment Software Association (ESA) and a group of intellectual property law professors filed amicus briefs in support of Activision’s motion for summary judgment. The professors argue that videogames are an expressive work, justifying a narrow application of the Lanham Act: “Realism in depiction without an explicitly false statement of source or sponsorship cannot be the valid basis of a claim.” There is no such false statement in Activision’s depiction of the Humvees.

For its part, the ESA brief echoed the view that videogames are expressive works, noting that such works have long been protected under First Amendment principles. A finding of infringement could open the flood gates, exposing videogame developers and publishers to frequent litigation on these grounds. According to the ESA, such games frequently recreate the real world, and a player seeing a product in that context would not be confused as to sponsorship or affiliation. To hold otherwise could chill free speech and the ability to tell stories in the real world.

Courts have in fact been reluctant to find that trademark rights outweigh First Amendment protection for expressive works. Free speech considerations are likely to take center stage in the Call of Duty case as well.