The Humvee in Call of Duty: Where Trademark Usage Meets the First Amendment

Above: Photo of a Humvee

If you’ve watched Jurassic Park or The Avengers, you’ve come across the Humvee featured in a Hollywood film. Formally called a High Mobility Multipurpose Wheeled Vehicle, the Humvee is a type of four-wheel drive truck manufactured by AM General. In 1983, the United States awarded AM General with a contract to create 55,000 Humvees for the military, and the truck has been a quintessential part of the American armed forces ever since, used everywhere from Iraq to Panama. At least four companies have even asked and received permission from AM General to use its trademarked vehicle in their military-themed video games.

Since other companies had requested authorization before including the Humvee in their products, it presumably caught AM General’s attention when the Humvee appeared in the popular video game Call of Duty without its consent. Moreover, Call of Duty is one of the largest video game franchises in the world, so countless consumers saw or interacted with the Humvee in the game even though AM General had not agreed to the usage of its trademark. After an unsuccessful cease-and-desist letter, AM General sued Activision Blizzard Inc., the creator of Call of Duty, for trademark infringement. Activision Blizzard responded by claiming that its usage of the mark was protected under the free speech right of the First Amendment.

Oftentimes, courts evaluate cases involving trademark usage and First Amendment free speech based on the Rogers test, named for a dispute involving Hollywood star Ginger Rogers. The Rogers test requires a court to consider two prongs. First, the court must assess whether a trademark has any “artistic relevance to the underlying work whatsoever.” In other words, for a movie about colonizing Mars, usage of the SpaceX logo would likely be more justifiable under the Rogers test than, say, the use of the Burger King logo because of the movie’s subject matter. That said, the Rogers test language is quite forgiving to artists, so even a slight significance of Burger King to the storyline could make its use acceptable. Secondly, the court must determine whether the trademark’s use “explicitly misleads as to the source or the content of the work.” This confusion could arise from numerous sources, including the mark’s distinctiveness or the artist’s intent when using it, and the court typically weighs eight factors—known as the Polaroid factors—to ascertain the amount of confusion in a given case.

In AM General LLC v. Activision Blizzard Inc., the District Court of New York applied the Rogers test to evaluate the appearance of the Humvee in Call of Duty. Under the first prong, the court found in favor of the video game manufacturers. As mentioned earlier, the Humvee is a symbol of the United States military, so the truck clearly had relevance to the subject matter of Call of Duty; incorporating the vehicle into a military-based game makes the virtual world more immersive. The second prong was less clear-cut. A survey found that about a fifth of consumers were confused about AM General’s relationship to the Call of Duty franchise. Ultimately, however, the court found that the second prong also favored Activision Blizzard due to its seemingly good-faith usage of the Humvee and the differences in the two companies’ markets. Accordingly, the District Court ruled that the video game company was within its First Amendment rights to use the Humvee trademark.

The Call of Duty case provides a fun but illustrative example of how courts tend to handle disputes where trademark usage and the First Amendment intersect. By the District Court’s own admission, the Rogers test favors artists’ rights to freedom of expression over infringement. Granted, the court sometimes finds that a specific mark had no importance or explicitly misled consumers, but such cases are rare. And the fact that the Humvee mark greatly enhances the realism of the military atmosphere in Call Of Duty is, if anything, a testament to AM General’s dominance in the market for American Armed Forces vehicles.