14 ms·

'Call of Duty' wins First Amendment victory over use of Humvees

194 points by danso 7y ago

smabie 7y ago
I probably don't know what I'm talking about, but it seems to me that many companies pursue legal action that is against their own interest. Surely, Humvees in CoD could only help the brand, no? Moreover, the fact that they don't even sell any consumer products in the first place makes the entire suit even more dubious. The use of Humvees in CoD is going to sow confusion among the military purchasing officers and they're no longer going to buy them? It just doesn't make any sense. I'm beginning to think that a lot of these types of lawsuits stems from the lawyers themselves recommending them and somehow convincing the management to go along with it. After all, they're really the only party that wins regardless of the outcome of the case.
- Smoosh 7y ago
  I suspect there's also an aspect of thinking by the company's management that control equals power and leads to profit. Clearly not fully thought through though.
  - anticensor 7y ago
    Control over non-members is an implicit goal common to all kinds of organisations, even in ones that are primarily instituted to control its members.
- tinkertamper 7y ago
  I also don't know what I'm talking about, but I think one of the core responsibilities of a trademark owner is that you establish a history of defending it. I heard once that if you don't do that you risk losing control of your rights to that property. Any smarty pants on here able to confirm/set me straight?
  - jussij 7y ago
    From the page: As for proximity of the products, while AM General may license out the rights to depict Humvees in games and toys, the judge isn't impressed because that's not its central purpose as a business. I also may not know what I'm talking about, but that statement by the judge suggests that in this case, AM General was not so much interested in protecting it's trademark, but rather more interested in enforce some sort of licensing payment.
  - crooked-v 7y ago
    This is called trademark erosion. An example of this historically would be aspirin, which was originally a trademarked brand name of Bayer but was legally ruled in 1918 and 1921 to have become genericized, because the company took no actions to prevent others from using the name. This generally only applies when non-holders use the trademark to market in the same field as the original business, though: not "we went to McDonald's", but rather "welcome to McDonald's (no relation to the corporate giant), would you like fries with that?". It doesn't apply in this case because the Call of Duty series has nothing to do with selling vehicles.
    - solinent 7y ago
      The standard example I've heard is for Trampoline. No one calls them rebound tumblers anymore. https://en.wikipedia.org/wiki/Trampoline#First_modern_trampolines https://en.wikipedia.org/wiki/Trampoline#First_modern_trampo... I think this is really just a case of lawyers being super-protective. It also pays well, I'm sure. I think a words like Humvee or even Google have coloquially already lost their meaning--their meaning is polymorphic, it's only a matter of time (100 years is a matter of time) before a better Humvee or Google not released by the original product designer comes along that people will call Humvee or Google anyways.
      - Swizec 7y ago
        Trader Joe’s makes the best kleenex. And my iPhone captures the best kodak moments. I also enjoy facetiming via Slack. And of course googling for music is best done on Spotify.
- save_ferris 7y ago
  Ehh, I think Humvee saw a company making a truckload of money and felt they had a right to some of it given that they own a major vehicle that's used in the game. I could easily see an ego-maniacal CEO or founder getting pissed that he's not getting paid for something he feels entitled to. Maybe they're seeing how pro athletes are licensing their likeness to games and thought they could make a compelling argument for why they should too. Whatever the reason, I also agree with outcome of the suit.
  - duskwuff 7y ago
    The flow is typically in the other direction, though -- companies pay for placement of their products in media, like movies and video games, as it's seen as a form of advertising.
    - filoleg 7y ago
      That's what I thought too, but then your comment got me thinking deeper. What you said definitely seems to be the case for general media, but what about something that relies almost entirely on the realistic products to be compelling? The specific example I was thinking of was racing games that use real cars (Forza, Gran Turismo, etc.). Do those companies get paid to feature real cars or do they have to pay to use them?
      - detaro 7y ago
        The game makers pay for racing games, or at least work out deals regarding marketing etc. I've read that car companies also care a lot about the presentation in-game, so e.g. games with real cars can't have extreme damage models because many companies don't want horribly wrecked versions of their cars to be shown.
      - duskwuff 7y ago
        > The specific example I was thinking of was racing games that use real cars (Forza, Gran Turismo, etc.). Do those companies get paid to feature real cars or do they have to pay to use them? I'm not sure, but I imagine so. What gets complicated is how the cars are depicted in the games. I've heard stories of racing simulators which couldn't use realistic damage models because the licensors for their cars wouldn't approve of having their cars depicted in a damaged state. I can imagine there might be issues with having some models of cars modelled as having worse performance than their competitors (slower, worse handling, etc) as well. It's not as though this is unique to video games, though. A company that's paying to have their car appear in a movie might stipulate that it not appear in situations involving it breaking down or crashing, for instance.
- wbobeirne 7y ago
  The most common explanation I see for this kind of behavior is that companies have to show that they actively defend their trademarks, which means being indiscriminate against trademark violations.
- deleted 7y ago
  [deleted]
- wmf 7y ago
  Video games were paying licensing fees to arms makers for a while so they just wanted in on that.
  - LatteLazy 7y ago
    Really? Who has done that? Edit, Google says some people did it till 2013...
- skocznymroczny 7y ago
  What if Humvees become the worst vehicles in the game because of balancing reasons? If I were the owner of the brand I'd be pissed. Even worse in case of other vehicles like racing cars. Imagine a racing game in which Porsche cars are slowest and break more often than other cars. You wouldn't want your brand to be associated with that, even if it's a videogame. Or imagine a completely broken game with popular car. Big Rigs level kind of broken. You wouldn't want your luxury car brand associated with broken school project level of games.
  - Alupis 7y ago
    > What if Humvees become the worst vehicles in the game because of balancing reasons? If I were the owner of the brand I'd be pissed. Pretty much exactly what happened with the Glock in the Counter Strike PC game.
    - babypuncher 7y ago
      And yet nobody bases their decision whether or not to buy a Glock based on its performance in Counter-Strike. It's a non-issue.
      - WaxProlix 7y ago
        I grew up playing Counter-Strike and have in the past few years bought a few guns; despite their solid reputation and the fact that they do what I want, I never even considered a Glock. Was this causal? Who knows, but I wouldn't rule it out.
        macintux 7y ago
        Given how effective advertising is, I think it's safer to assume that such a relationship does exist for some. We're all subject to a wide variety of unconscious biases.
        projektfu 7y ago
        I assume that a gamer would want a Heckler & Koch VP9 just for the appearance.
- wmil 7y ago
  A while back (90s?) defence involved corporations adopted a "maximum ip" strategy. So they demand license fees for things like scale model F-15 kits. They want to keep that revenue and expand it, so they try to make video game companies get licenses. To expand revenue and defend trademarks.
- LatteLazy 7y ago
  In the US you generally have to pay your own fees, even if you successfully defend a suit. So I guess it makes sense for Humvee: they need a legal department for when there are real lawsuits. They have to pay them all the time, as they don't know when a real suit will hit them. So in the mean time, why not file frivolous bs like this? The margin cost is zero. If a real suit comes in, you just drop the bs one. And you might get an insane judge and actually win! And if you don't, at least it kept everyone busy for a year.
  - refurb 7y ago
    The margin cost is zero Corporate legal departments (at least the big companies) hire out trial work typically and at a very high hourly price.
    - Sebguer 7y ago
      Also the idea that corporate legal departments are just doing nothing all the time unless they're suing people is the tech equivalent of only caring about IT when something's broken.
- Supermancho 7y ago
  > the fact that they don't even sell any consumer products in the first place makes the entire suit even more dubious. The CoD brand makes enough money to blink at. I'm 100% sure that one strategy was to win the suit and demand license fees for use of the name.
  - kevin_thibedeau 7y ago
    The name HMMWV is public domain.
- legulere 7y ago
  It’s not the company that makes the decision to sue, but the legal department. For the legal department any legal action is good, because it increases their importance and size in the company.
  - BiteCode_dev 7y ago
    Somebody is above the legal department. That person doesn't care that the department is important or not, only that it's useful. So how does that happen ?
- m463 7y ago
  I remember playing a racing game years ago (Gran Turismo maybe?) where the cars weren't allowed to have realistic crash damage because of agreements with the car manufacturers. Meanwhile GTA would let you drive a car until it fell apart. And simpson's hit and run :)
- 2OEH8eoCRo0 7y ago
  Does the game accurately depict them not starting or having a multitude of problems?
CM30 7y ago
Have to be honest, I've always thought complaints about trademarked products in works of fiction were a silly thing to begin with. Why shouldn't a fictional universe feature products and businesses found in the real world? Are we supposedly to randomly assume all other universes don't have humvees or macbooks or the Red Cross? Who's to say the same people/companies/organisations would even be responsible in that work of fiction? The law should basically just say there's no trademark violation in featuring a real world product/service in a fictional work so long as it couldn't reasonably be confused as a piece of marketing by the creator of said product or person. Obviously the work shouldn't be about say, Mickey Mouse, but it should be perfectly fine to feature say, Disney and their products as background elements in a fictional work without the approval of Disney. Just seems ridiculous to have it work any other way.
- saagarjha 7y ago
  What if I took your product and had it fail spectacularly in my movie?
  - ceejayoz 7y ago
    Is it being marketed as a documentary?
    - saagarjha 7y ago
      Let’s say it isn’t.
      - csallen 7y ago
        Then why should it be illegal? Sure, as the maker of said product, I won't be happy seeing it portrayed in a negative light. But bad reviews, negative jokes, and outright mockery are a natural risk that comes from the totally optional endeavor of creating products. Should my feelings trump your rights to creativity and speech?
  - danShumway 7y ago
tehjoker 7y ago
Amazed that art (albeit military propaganda art) won out over the wishes and possibility of merchandising by an actual war profiteer.
- kyuudou 7y ago
  That's because the video games industry gets tons of money from the military.
EamonnMR 7y ago
Maybe this will mean that games won't have to make up whacky (and confusing) off-brand names for every gun.
- danbolt 7y ago
  I love those little ingame props, or they can reflect a lot of interesting nuances and opinions about weapons.
  - dehrmann 7y ago
    Or on "The Simpsons." Things like the Kwik-e-Mart, Krusty Burger, Duff Beer, and characters like Rainier Wolfcastle are more amusing than what they parody.
ummonk 7y ago
I'm not sure how this will go on appeal and to what extent it will have general applicability as precedent. It would be great if e.g. racing simulators could depict cars without needing licensing (and imo it's ridiculous that they can't already do so, given that there isn't really any scope for confusion as to who is actually selling the car).
sharker8 7y ago
I honestly don't know which is worse, a contract manufacturer complaining about unlicensed brand depictions or what happens in hollywood: http://movieline.com/2013/02/06/military-entertainment-complex-hollywood-pentagon-relationship-battleship-zero-dark-thirty/ http://movieline.com/2013/02/06/military-entertainment-compl...
Keverw 7y ago
Nice! I know Books and Movies have first amendment protections, but some reason people debate about it for games. I remember another similar story on HN a while back and someone said they were contacted to remove a mailbox they posted to a model sharing site because it looked too similar to a real life mailbox. But as far as I know they didn't push back, but I felt that company was abusing things, especially since they sent a DMCA which doesn't cover trademark disputes - but I guess most companies don't care and will take it down if they get a notice since they feel it's the courts job to decide if it was valid or not if someone decides to fight back. I guess legally, companies just act as a middleman doing a process so they won't be held legally liable even if the notice is wrong so they can keep their safe harbor instead of picking sides. Then I remember the case where a real life club got mad at grand theft auto. But in the end it was decided people wouldn't confuse a night club in real life with one in a virtual world. Probably would be the same for that mail or car example too. And they didn't even use the logo, the shape or colors of things can count as a trademark.
greggman3 7y ago
What about Gran Turismo. AFAIK they license all the cars. Does this mean they won't have to license them anymore?
ryanmarsh 7y ago
The HMMWV is on its way out. Orders for the vehicle are decreasing and will (or maybe already have) stopped. The vehicle is being replaced by the JLTV and MRAP (among others).
ezoe 7y ago
I really can't understand how could a lawsuit like this were valid in the first place. The purpose of trademark is to prevent the counterfeit item be recognized as the same as trademarked item. If the item is truly meant to refer the trademarked item, in this case realtime 3DCG rendering, there is no violation of the trademark. Isn't it? It's the same reason I can write any trademarked term here and not violate the trademark law. US law system is beyond my understanding.

194 points by danso 7y ago

I probably don't know what I'm talking about, but it seems to me that many companies pursue legal action that is against their own interest. Surely, Humvees in CoD could only help the brand, no? Moreover, the fact that they don't even sell any consumer products in the first place makes the entire suit even more dubious. The use of Humvees in CoD is going to sow confusion among the military purchasing officers and they're no longer going to buy them? It just doesn't make any sense. I'm beginning to think that a lot of these types of lawsuits stems from the lawyers themselves recommending them and somehow convincing the management to go along with it. After all, they're really the only party that wins regardless of the outcome of the case.

Smoosh 7y ago
I suspect there's also an aspect of thinking by the company's management that control equals power and leads to profit. Clearly not fully thought through though.
- anticensor 7y ago
  Control over non-members is an implicit goal common to all kinds of organisations, even in ones that are primarily instituted to control its members.
tinkertamper 7y ago
I also don't know what I'm talking about, but I think one of the core responsibilities of a trademark owner is that you establish a history of defending it. I heard once that if you don't do that you risk losing control of your rights to that property. Any smarty pants on here able to confirm/set me straight?
- jussij 7y ago
  From the page: As for proximity of the products, while AM General may license out the rights to depict Humvees in games and toys, the judge isn't impressed because that's not its central purpose as a business. I also may not know what I'm talking about, but that statement by the judge suggests that in this case, AM General was not so much interested in protecting it's trademark, but rather more interested in enforce some sort of licensing payment.
- crooked-v 7y ago
  This is called trademark erosion. An example of this historically would be aspirin, which was originally a trademarked brand name of Bayer but was legally ruled in 1918 and 1921 to have become genericized, because the company took no actions to prevent others from using the name. This generally only applies when non-holders use the trademark to market in the same field as the original business, though: not "we went to McDonald's", but rather "welcome to McDonald's (no relation to the corporate giant), would you like fries with that?". It doesn't apply in this case because the Call of Duty series has nothing to do with selling vehicles.
  - solinent 7y ago
    The standard example I've heard is for Trampoline. No one calls them rebound tumblers anymore. https://en.wikipedia.org/wiki/Trampoline#First_modern_trampolines https://en.wikipedia.org/wiki/Trampoline#First_modern_trampo... I think this is really just a case of lawyers being super-protective. It also pays well, I'm sure. I think a words like Humvee or even Google have coloquially already lost their meaning--their meaning is polymorphic, it's only a matter of time (100 years is a matter of time) before a better Humvee or Google not released by the original product designer comes along that people will call Humvee or Google anyways.
    - Swizec 7y ago
      Trader Joe’s makes the best kleenex. And my iPhone captures the best kodak moments. I also enjoy facetiming via Slack. And of course googling for music is best done on Spotify.
save_ferris 7y ago
Ehh, I think Humvee saw a company making a truckload of money and felt they had a right to some of it given that they own a major vehicle that's used in the game. I could easily see an ego-maniacal CEO or founder getting pissed that he's not getting paid for something he feels entitled to. Maybe they're seeing how pro athletes are licensing their likeness to games and thought they could make a compelling argument for why they should too. Whatever the reason, I also agree with outcome of the suit.
- duskwuff 7y ago
  The flow is typically in the other direction, though -- companies pay for placement of their products in media, like movies and video games, as it's seen as a form of advertising.
  - filoleg 7y ago
    That's what I thought too, but then your comment got me thinking deeper. What you said definitely seems to be the case for general media, but what about something that relies almost entirely on the realistic products to be compelling? The specific example I was thinking of was racing games that use real cars (Forza, Gran Turismo, etc.). Do those companies get paid to feature real cars or do they have to pay to use them?
    - detaro 7y ago
      The game makers pay for racing games, or at least work out deals regarding marketing etc. I've read that car companies also care a lot about the presentation in-game, so e.g. games with real cars can't have extreme damage models because many companies don't want horribly wrecked versions of their cars to be shown.
    - duskwuff 7y ago
      > The specific example I was thinking of was racing games that use real cars (Forza, Gran Turismo, etc.). Do those companies get paid to feature real cars or do they have to pay to use them? I'm not sure, but I imagine so. What gets complicated is how the cars are depicted in the games. I've heard stories of racing simulators which couldn't use realistic damage models because the licensors for their cars wouldn't approve of having their cars depicted in a damaged state. I can imagine there might be issues with having some models of cars modelled as having worse performance than their competitors (slower, worse handling, etc) as well. It's not as though this is unique to video games, though. A company that's paying to have their car appear in a movie might stipulate that it not appear in situations involving it breaking down or crashing, for instance.
wbobeirne 7y ago
The most common explanation I see for this kind of behavior is that companies have to show that they actively defend their trademarks, which means being indiscriminate against trademark violations.
deleted 7y ago
[deleted]
wmf 7y ago
Video games were paying licensing fees to arms makers for a while so they just wanted in on that.
- LatteLazy 7y ago
  Really? Who has done that? Edit, Google says some people did it till 2013...
skocznymroczny 7y ago
What if Humvees become the worst vehicles in the game because of balancing reasons? If I were the owner of the brand I'd be pissed. Even worse in case of other vehicles like racing cars. Imagine a racing game in which Porsche cars are slowest and break more often than other cars. You wouldn't want your brand to be associated with that, even if it's a videogame. Or imagine a completely broken game with popular car. Big Rigs level kind of broken. You wouldn't want your luxury car brand associated with broken school project level of games.
- Alupis 7y ago
  > What if Humvees become the worst vehicles in the game because of balancing reasons? If I were the owner of the brand I'd be pissed. Pretty much exactly what happened with the Glock in the Counter Strike PC game.
  - babypuncher 7y ago
    And yet nobody bases their decision whether or not to buy a Glock based on its performance in Counter-Strike. It's a non-issue.
    - WaxProlix 7y ago
      I grew up playing Counter-Strike and have in the past few years bought a few guns; despite their solid reputation and the fact that they do what I want, I never even considered a Glock. Was this causal? Who knows, but I wouldn't rule it out.
      - macintux 7y ago
        Given how effective advertising is, I think it's safer to assume that such a relationship does exist for some. We're all subject to a wide variety of unconscious biases.
      - projektfu 7y ago
        I assume that a gamer would want a Heckler & Koch VP9 just for the appearance.
wmil 7y ago
A while back (90s?) defence involved corporations adopted a "maximum ip" strategy. So they demand license fees for things like scale model F-15 kits. They want to keep that revenue and expand it, so they try to make video game companies get licenses. To expand revenue and defend trademarks.
LatteLazy 7y ago
In the US you generally have to pay your own fees, even if you successfully defend a suit. So I guess it makes sense for Humvee: they need a legal department for when there are real lawsuits. They have to pay them all the time, as they don't know when a real suit will hit them. So in the mean time, why not file frivolous bs like this? The margin cost is zero. If a real suit comes in, you just drop the bs one. And you might get an insane judge and actually win! And if you don't, at least it kept everyone busy for a year.
- refurb 7y ago
  The margin cost is zero Corporate legal departments (at least the big companies) hire out trial work typically and at a very high hourly price.
  - Sebguer 7y ago
    Also the idea that corporate legal departments are just doing nothing all the time unless they're suing people is the tech equivalent of only caring about IT when something's broken.
Supermancho 7y ago
> the fact that they don't even sell any consumer products in the first place makes the entire suit even more dubious. The CoD brand makes enough money to blink at. I'm 100% sure that one strategy was to win the suit and demand license fees for use of the name.
- kevin_thibedeau 7y ago
  The name HMMWV is public domain.
legulere 7y ago
It’s not the company that makes the decision to sue, but the legal department. For the legal department any legal action is good, because it increases their importance and size in the company.
- BiteCode_dev 7y ago
  Somebody is above the legal department. That person doesn't care that the department is important or not, only that it's useful. So how does that happen ?
m463 7y ago
I remember playing a racing game years ago (Gran Turismo maybe?) where the cars weren't allowed to have realistic crash damage because of agreements with the car manufacturers. Meanwhile GTA would let you drive a car until it fell apart. And simpson's hit and run :)
2OEH8eoCRo0 7y ago
Does the game accurately depict them not starting or having a multitude of problems?

CM30 7y ago

Have to be honest, I've always thought complaints about trademarked products in works of fiction were a silly thing to begin with. Why shouldn't a fictional universe feature products and businesses found in the real world? Are we supposedly to randomly assume all other universes don't have humvees or macbooks or the Red Cross? Who's to say the same people/companies/organisations would even be responsible in that work of fiction? The law should basically just say there's no trademark violation in featuring a real world product/service in a fictional work so long as it couldn't reasonably be confused as a piece of marketing by the creator of said product or person. Obviously the work shouldn't be about say, Mickey Mouse, but it should be perfectly fine to feature say, Disney and their products as background elements in a fictional work without the approval of Disney. Just seems ridiculous to have it work any other way.

saagarjha 7y ago
What if I took your product and had it fail spectacularly in my movie?
- ceejayoz 7y ago
  Is it being marketed as a documentary?
  - saagarjha 7y ago
    Let’s say it isn’t.
    - csallen 7y ago
      Then why should it be illegal? Sure, as the maker of said product, I won't be happy seeing it portrayed in a negative light. But bad reviews, negative jokes, and outright mockery are a natural risk that comes from the totally optional endeavor of creating products. Should my feelings trump your rights to creativity and speech?
- danShumway 7y ago

tehjoker 7y ago

Amazed that art (albeit military propaganda art) won out over the wishes and possibility of merchandising by an actual war profiteer.

kyuudou 7y ago
That's because the video games industry gets tons of money from the military.

EamonnMR 7y ago

Maybe this will mean that games won't have to make up whacky (and confusing) off-brand names for every gun.

danbolt 7y ago
I love those little ingame props, or they can reflect a lot of interesting nuances and opinions about weapons.
- dehrmann 7y ago
  Or on "The Simpsons." Things like the Kwik-e-Mart, Krusty Burger, Duff Beer, and characters like Rainier Wolfcastle are more amusing than what they parody.

ummonk 7y ago

I'm not sure how this will go on appeal and to what extent it will have general applicability as precedent. It would be great if e.g. racing simulators could depict cars without needing licensing (and imo it's ridiculous that they can't already do so, given that there isn't really any scope for confusion as to who is actually selling the car).

sharker8 7y ago

I honestly don't know which is worse, a contract manufacturer complaining about unlicensed brand depictions or what happens in hollywood: http://movieline.com/2013/02/06/military-entertainment-complex-hollywood-pentagon-relationship-battleship-zero-dark-thirty/ http://movieline.com/2013/02/06/military-entertainment-compl...

Keverw 7y ago

Nice! I know Books and Movies have first amendment protections, but some reason people debate about it for games. I remember another similar story on HN a while back and someone said they were contacted to remove a mailbox they posted to a model sharing site because it looked too similar to a real life mailbox. But as far as I know they didn't push back, but I felt that company was abusing things, especially since they sent a DMCA which doesn't cover trademark disputes - but I guess most companies don't care and will take it down if they get a notice since they feel it's the courts job to decide if it was valid or not if someone decides to fight back. I guess legally, companies just act as a middleman doing a process so they won't be held legally liable even if the notice is wrong so they can keep their safe harbor instead of picking sides. Then I remember the case where a real life club got mad at grand theft auto. But in the end it was decided people wouldn't confuse a night club in real life with one in a virtual world. Probably would be the same for that mail or car example too. And they didn't even use the logo, the shape or colors of things can count as a trademark.

greggman3 7y ago

What about Gran Turismo. AFAIK they license all the cars. Does this mean they won't have to license them anymore?

ryanmarsh 7y ago

The HMMWV is on its way out. Orders for the vehicle are decreasing and will (or maybe already have) stopped. The vehicle is being replaced by the JLTV and MRAP (among others).

ezoe 7y ago

I really can't understand how could a lawsuit like this were valid in the first place. The purpose of trademark is to prevent the counterfeit item be recognized as the same as trademarked item. If the item is truly meant to refer the trademarked item, in this case realtime 3DCG rendering, there is no violation of the trademark. Isn't it? It's the same reason I can write any trademarked term here and not violate the trademark law. US law system is beyond my understanding.