Federal Court Tosses Trademark Claims Against Publishers Of Call Of Duty: Ghosts Over “Angry Monkey” Uniform Patch Option

Call-Of-Duty-GhostsA California federal district court has thrown out trademark claims by military supply and outfitting company Mil-Spec Monkey against the publishers of the video game Call of Duty: Ghosts, ruling that the appearance of MSM’s “angry monkey” uniform patch design in the game is protected by the First Amendment.

Call of Duty is a military action game franchise that allows players to assume the role of a combat soldier and battle other players or the computer in a variety of combat settings.  Ghosts, released November 2013, is the Call of Duty franchise’s tenth installment.  Set in a futuristic war-torn world, the game protagonists are the “Ghosts”–a force of U.S. Special Operations personnel trained to conduct secret missions behind enemy lines.

The game features multi-player options that allow players to collaborate as squads or compete against each other, and customization options that permit players to select their game avatar’s gender, uniform style, gear, accessories, and uniform patches.  Players using the customization options in multi-player mode may select from a total of over 600 patches to place on their avatars’ uniforms–thirty-two of which are “standard issue,” and the remainder of which must be “unlocked” by game play.   An “angry monkey” patch is one of the thirty-two “standard issue” patches that are immediately available as an option.

MSM filed a complaint against Activision Blizzard and Activision Publishing on May 22, 2014,  alleging that the “angry monkey” patch option in Ghosts infringes its original “angry monkey” design. MSM further alleged that it holds a registered federal trademark in the patch design, and that the design carries considerable goodwill and widespread recognition as an identifier of MSM’s goods.   MSM alleged causes of action against Activision for (1) copyright infringement, (2) trademark infringement under the Lanham Act, (3) false designation of origin, (4) California statutory unfair competition (Business & Professions Code section 17200; and (5) common law trademark infringement.  On October 16, 2014, Activision moved for partial summary judgment of the trademark claims (causes of action two through five), arguing that the claims were precluded by Activision’s First Amendment right to free expression.

The federal court for the Northern District of California granted the motion.  Preliminary, the Court repeated the holding of numerous other Courts that videogames are “core speech” entitled to First Amendment safeguards.  The Court also noted that trademark law exists to protect the symbols and devices used to identify a particular product in the marketplace and prevent consumer confusion, but is not a license to a trademark holder to suppress free expression.  Against this backdrop, the Court applied the two-pronged test earlier adopted by the Ninth Circuit to determine whether MSM’s trademark claims could be maintained as against Activision’s Constitutional right to free expression:  (1) whether the use of the mark has “no artistic relevance to the underlying work whatsoever,” or (2) it has some artistic relevance, but “explicitly misleads as to the source or content of the work.”  (Rogers v. Grimaldi, 875 f.2d 994 (2d. Cir. 1989).

In the Court’s view, MSM could put forth no credible evidence that the “angry monkey” patch has no artistic relevance to Ghosts.  The Court further found no credible evidence that Activision’s use of the patch design could be read as an “overt statement” by Activision that it has a relationship with MSM, or that MSM endorses the game.  On the contrary, the Court found that the game packaging is very clear as to its origin and source, and that Activision “understandably has made every effort to affirmatively negate any possible confusion,” given the game’s commercial success.