Battle over HMMWV, HUMMERs, Vipers, Venoms and Ospreys

So a few years ago the makers of the HMMWV or Hummer took legal action against Activision's Call of Duty Franchise citing Trademark and Tradedress infractions as cause.

And this isn't the only time Trademarks and Tradedress have been an issue.  In 2012 Textron the owner of Bell Helicopters contacted EA to discuss the unauthorised use of their Trademarks in Battlefield 3.  In a bit of a twist, EA were the first to start legal proceedings against Textron/Bell.

The lawsuit says that on Dec. 21, Textron lawyers demanded that EA cease its depiction of three Bell aircraft in Battlefield 3. "The parties have been unable to resolve their dispute," EA's complaint says. "EA therefore has a reasonable and strong apprehension that it will soon face a trademark and/or trade dress action from Textron."

EA is claiming that its depiction of the three named aircraft in the games as protected by the First Amendment rights laid out by the US constitution. Eventually, after numerous court appearances and  over the course of nearly two years both parties settled out of court.  The details of which don't appear to be public record.

No US legal precedent was set by the 2012 case which is why in 2017 AM General the owners of the HMMWV and Hummer Trademarks began a legal action against Activision for its use of both the Trademarks and Likeness of their products.

In its lawsuit, AM General LLC accused Activision Blizzard Inc of reaping "billions of dollars" by using both the Humvee and HMMWV trademarks in the games, and related toys and books...

 AM General thinks its trucks played a large part in that success. The company claims that Activision duped gamers into "believing" that "AM General licenses the games or is somehow involved [in their] creation." After more than a year of alleged failed communications with the video game publisher, it's now seeking compensatory, punitive, and triple damages from Activision -- which should amount to a lot of dough. Activision is refusing to comment on the pending legal matter.

This led quite a few people to conclude that this was more about a 'grab for cash' than it was about concern over trademark infringement.  Especially since AM General had just lost out on the new US Military project to replace the HMMWV.  Grabbing possibly upto US$3 Billion in compensation would have a significant effect on the companies finances.

So how is this relevant to ArmA modding?

Well it should serve as a bit of a warning to modders about using Trademarks.  Where possible stick to the Governmental Designations for the models.

TOW HMMWV = M1025A2 Armament/TOW Missile Carrier, basic armor
Colt M4 = M4A1 Carbine
Land Rover Defender = Offender

Some game makers have found ways to include real-life guns in their games while avoiding licensing costs. One ex-Codemasters employee, who asked to remain anonymous, described his experience of working on Operation Flashpoint, a franchise featuring the US Marines. "We didn't license weapons in the Flashpoint series," he says. "We covered ourselves from a legal angle [by not using any] names or manufacturers. The general rule is that you can use the model delineation but you can't use its proper name manufacturer name without prior permission. 

"For example, we used 'M4A1 Carbine' which is the weapon's military code. Carbine means it's a shorter version for use in Close Quarters Battle. I forget if we refer to the weapons by name in the script but we were being so careful that we checked, double-checked and in many cases triple-checked with legal that we could use the weapon model numbers." (source = https://www.eurogamer.net/articles/2013-02-01-shooters-how-video-games-fund-arms-manufacturers)

As a general rule, it is perfectly legal to make "an artistic representation" of any real world object without specific authorisation and reasonably expect to be safe from prosecution under IP laws. In the EU there is legal precedent for this but in the US its not quite as cut and dried. There are several caveats to this. For example and not limited to:

• Must not use any trademark in the name or as part of the model.  ie Logos and branding
• Must not generate income over a certain threshold (varies by region)
• Must never use or imply permission or connection with the IP holder.
• Must not impact upon the Trademark holder's pre-existing markets.

The last one is relevant for IP lines like Star Wars, Star Gate and Star Trek.  Generally these franchises started on TV but have now spun off into books and games too.  So making a mod using IP from these can be seen to be "distracting/detracting from potential sales of their products".  In which case the claim "I'm not doing this for commercial gain" simply does not matter.

BOTTOM LINE: You may not be profiting.  But you maybe seen to be affecting their commercial sales of their games. Which is the same result in the eyes of the law.  Their business is potentially affected and that's all it takes for you to land in legal trouble.

Reference Links:

1. https://charlieintel.com/activision-responds-to-lawsuit-over-using-humvees-in-call-of-duty-without-permission/54644/
2. https://www.engadget.com/2017/11/10/humvee-activision-call-of-duty-lawsuit/
3. https://www.forbes.com/sites/michellekaminsky/2019/05/30/iron-maiden-sues-ion-maiden-video-game-creators-alleging-trademark-infringement/#44834bbdf80a
4. https://www.reuters.com/article/us-videogames-guns/video-game-maker-drops-gun-makers-not-their-guns-idUSBRE9460U720130507
5. https://kotaku.com/ea-invokes-first-amendment-protection-for-video-games-i-5874076
6. https://law.justia.com/cases/federal/district-courts/california/candce/3:2012cv00118/250492/79/
7. https://www.engadget.com/2013/08/16/ea-settles-battlefield-3-and-textron-helicopter-lawsuit/