Law360 recently turned to St. Louis IP attorney Bryan Wheelock to discuss ongoing efforts by trademark owners to sue video game companies for alleged unlawful use of their trademarked products.

A new lawsuit from AM General LLC, makers of the military Humvee, claims that Activision Blizzard Inc.’s popular “Call of Duty” games have had tremendous success at the expense of AM General and its consumers “who are deceived into believing that AM General licenses the games or is somehow connected with or involved in the creation of the games.”

These types of lawsuits are not new. Several gaming companies, including Rockstar Games and Electronic Arts, have been challenged by trademark owners. Courts have routinely rejected these lawsuits, however, ruling that video games are protected by the First Amendment.

Following the “Rogers test” set forth in the 1980s, video game makers typically only find themselves in trouble if the trademark used is artistically irrelevant to the game or if it intentionally misleads consumers. As video games have increasingly become more realistic, the article alleges, judges have not hesitated to apply the same test.

One lawsuit in which Bell Helicopter Textron sued Electronic Arts over the use of the Cobra Helicopter in the “Battlefield 3” video game, however, could pose a problem for Activision. The judge in the case did not dismiss the claims over First Amendment rights, claiming instead that the use of the helicopter could have been a major selling point for the game and not a merely incidental appearance of the trademarked product.

Although they still have a tough battle ahead of them, AM General is now following the same line of logic by claiming that the use of their Humvees in “Call of Duty” is a key feature of the game.

Bryan Wheelock, who previously wrote about the AM General lawsuit against Activision, says the situation can be difficult for brand owners who fear that their inaction could lead to the loss of their rights. “But I am concerned about the ‘tax’ that these enforcement efforts put on the creators of artistic content,” he says, “who may forgo interesting or entertaining expression out of fear of groundless litigation.”

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