Activision says Humvee lawsuit over vehicle trademark is an ‘attack’ on First Amendment rights

Back in 2017, the makers of Humvee military vehicles sued Activision Publishing for using Humvees in Call of Duty titles without permission of Humvee. The makers of Humvee were seeking millions in missed revenue opportunities from Activision not getting permission to use Humvee in their titles.

Humvee vehicles have been used in more than just Call of Duty games; they have been used in TV shows and movies and the outcome of this lawsuit could impact all of those industries not just Call of Duty titles.

Activision finally responded to the lawsuit in a new filing with courts on Friday, May 31 saying that the lawsuit is a direct attack on First Amendment Rights.

“This case is nothing less than a direct attack on the First Amendment right to produce creative works that realistically depict contemporary warfare,” opens a summary judgment motion filed by Activision. “AM General LLC, 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.”

Activision goes on to claim that the company never stated that the vehicles are actually Humvees and that the company is not competing with AM General in any way in the businesses that they both operate in.

HUMVEE® has been featured in every Call of Duty game almost, being prominently used in the titles’ campaigns and backgrounds of multiplayer maps.

The lawsuit from AM General, the makers of Humvee, included Activision, Activision Blizzard, and Major League Gaming Corp, all of which are all owned by Activision Blizzard Inc.

AM General filed a brief responding to Activision’s lengthy response claiming that the company has profited from Call of Duty using HUMVEE without every seeking permission.

“A defendant who engages in willful infringement may not invoke laches,” states AM’s brief, which can be read here. “[T]he evidence is undisputed that Activision acted willfully. The evidence comes from Activision’s own documents, its executives’ deposition testimony, and its own conduct. The evidence proves that Activision used the HUMVEE® Trade Dress knowing that it had no right to do so, knowing that it was unlawful to do so, yet intending to reap a substantial benefit from its widespread, unauthorized use.”

AM General’s brief that was filed is redacted in many areas by a judge, so it’s hard to depict some of the information they are trying to argue on. One section states that “although many military aircraft and vehicles appear in those of the Call of Duty games that are set in current and near-future times, the HUMVEE® vehicle is the only military vehicle that appears in every one of them. In fact, so valuable is the HUMVEE® vehicle to the Call of Duty franchise that Activision’s president admitted that..” The rest of that is redacted, as Activision executives deposition in this case is not available.

SOURCE: Hollywood Reporter