A New York federal judge for the Southern District of New York ruled last week that Activision Blizzard, the publisher of Call of Duty, could use the Humvee trademark in its games. The lawsuit was initiated by Humvee manufacturer and military contractor AM General (AMG). AMG argued that Activision had used its trademarks without authorization in several video games.

In granting Activision’s motion for summary judgment, Judge Daniels wrote that as an art form, video games had a higher level of protection against the Lanham Act, the law that governs trademark regulations. While AMG argued that the use of the Humvee trademarks violated the act, Judge Daniels wrote that the Lanham Act could not outweigh the First Amendment protections afforded to an art form like Call of Duty games.

Relying on the previous court case of Rogers v. Grimaldi, the judge came to the conclusion that the Lanham Act could not be applied in this case.

AMG would have to prove that the use of the Humvees in the game had “no artistic relevance to the underlying work whatsoever.” In other words, AMG had to prove that the use of their mark was to intentionally “mislead” the user and cause confusion with their trademark.

In applying the test, Daniels said that there was a clear artistic relevance to the underlying work. Relying on Brown v. Entertainment Merchants Association, a 2010 Supreme Court decision that determined video games are art protected by the First Amendment, Daniels wrote that the use of Humvees here enhanced the art of the work. After all, he wrote, Activision wants to make its games seem realistic. Incorporating AMG’s trademarks enhances the realism of the Call of Duty games. The judge also said the use of the trademarks was not confusing enough to “outweigh the First Amendment interests.”

Given that AMG did not have any substantive claims against Activision, Judge Daniels granted summary judgment to the defendant.

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