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AM General wasn't pleased with its Humvee being used in Activision's Call of Duty series and had decided to sue the publisher in 2017 for featuring the vehicle in-game without permission. The legal battle was concluded this week after a federal judge dismissed AMG's claim of alleged trademark infringement and false advertisement of the Humvee's depiction in the game.
Judge George Daniels applied the two-pronged "Rogers test" on Activision's games, which relates to the use of trademarked names in artistic works without facing liability, and observed that Humvees in Call of Duty had "artistic relevance" since they evoked a sense of realism in a video game simulating modern warfare. "If realism is an artistic goal, then the presence in modern warfare games of vehicles employed by actual militaries undoubtedly furthers that goal," the judge noted.
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Activision was also cleared of the multi-factor "Polaroid" test that's used to determine if using a trademark is meant to explicitly mislead consumers from the original source. Since there was a possibility of AMG being associated with Call of Duty for its use of Humvees, the judge considered AMG's consumer survey pertaining to this issue and found that a turnout of "less than 20 percent" confusion among surveyed people was not enough to qualify as a legal precedent.
"Any degree of confusion that does exist is outweighed by the First Amendment interests reflected in the Rogers balancing test," the judge added, ultimately tipping the scales in Activision's favor and acknowledging the use of Humvees as integral elements of a video game as they "communicate ideas … through features distinctive to the medium."