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Late last year, a California federal court ruled that video game makers may, under certain circumstances, use another company’s trademarks in their virtual worlds to add authenticity without committing trademark infringement. In that case, Mil-Spec Monkey, Inc. sued Activision, claiming its trademarked “angry monkey” logo was infringed by Activision’s use of images similar to that logo on military patches within Activision’s Call of Duty: Ghosts game. Below is a comparison of the two logos:

 

 

The court confirmed that video games are expressive works and, therefore, entitled to the same level of First Amendment protection as more traditional copyrighted works, such as novels, motion pictures, or paintings. According to the court, that First Amendment protection can only be overcome if the videogame’s use of the trademark has “no artistic relevance to the underlying work whatsoever,” or “explicitly misleads as to the source or the content of the work.”

The court found that Activision’s use of the angry-monkey patch on game characters had artistic relevance, namely to create a “realistic combat experience” that includes use of military patches actually “available in the real world.” Here, ironically, popularity hurts the trademark owner, as the patch’s popularity is why its inclusion in the game adds authenticity to the virtual world. Activision also did not use the patch in an “explicitly misleading” manner because, among other things, the game’s packaging clearly identifies Activision as the source of the Call of Duty game. Based on that analysis, the court dismissed all of Mil-Spec’s trademark claims. Mil-Spec’s copyright infringement claim, however, remains pending.

Whether this decision emboldens other videogame makers, such as Rockstar Games (maker of the popular Grand Theft Auto series), to incorporate popular, real-world trademarks and logos into their virtual gaming environment remains to be seen. What they decide to do may ultimately depend on what happens to Mil-Spec’s remaining copyright claim or whether there’s an appeal.

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