In its pursuit of simulating realistic combat arenas, the game’s various developers have included real weapons and vehicles. The Call of Duty series features the famous HMMWV, or HumVee, as a vehicle which the US special forces in the game ride around in.
There’s just one small issue: Activision didn’t seek permission from AM General to use the Hummer, and AM General sued. The studio defended itself by citing First Amendment to the US Constitution, as games can be considered artist works protected by freedom of expression.
The case reached its climax earlier this week, with a pretty surprising outcome. US District Court Judge George Daniels decided in Activision’s favor. Judge Daniels found that Call of Duty’s depictions of HumVees were relevant to the artistic goal of realism:
“If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal.”
In addition, Judge Daniels heard evidence regarding a legal test known as the Polaroid Factor regarding product confusion, but again found in Activision’s favor. In essence, as Call of Duty is not involved in selling vehicles, there’s no plausible reason that consumers would become confused and buy the wrong thing.
“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.”
The ruling could have much wider-ranging consequences than a military truck in a famous FPS. In essence, any game which pursues realism as a primary goal could use this ruling as a defense against having to acquire expensive licenses for registered trademarks.