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.
Consumers are smart enough to know that fictional media is fictional. If we're not protecting products from negative reviews, opinion peices, or satire -- then fictional stories seems to me like a really weird place to draw a line.
What if I took your product and made a joke about it having ties to a cult?[0] I don't see any reason to treat fictional movies and games like they're a special medium.
I also assume we're not proposing that people should be banned from making fictional stories that feature real events and people. So jumping off of that point, what makes a movie that incorporates a public, trademarked brand different than a movie that incorporates a living public figure?
But to follow up, why should we protect brands from negative psychological associations in movies?
We still allow real products to be used in satires, even though satires could have the same unconscious effects you reference. We still allow people to publicly criticize products. We still allow real public figures and events to be referenced in fictional media, even though the same psychological effects you reference could negatively impact people's perception of them as well.
I still don't see anything that's special about a trademark that means it needs extra protection in this area.
I am not a lawyer, and I'd welcome input from a real lawyer. But I am almost certain that satirical references to real brands are protected by fair use. I similarly suspect that licensing is not a legal requirement for movies.
I would be curious how you square your claim with Rogers v Grimaldi[0], or more directly, how you square it with the outcome of the very case we're commenting on.
https://www.inta.org/TMR/Pages/vol99_no6_a2.aspx
Pay attention to huge vulnerabilities like (6) the defendant’s intent in adopting the mark, wherein the defendant will have to show how a property was not used for a purpose, that the plaintiff will take issue with. Does anyone remember the Ford suit to stop news outlets from showing jihadists driving around in Ford pickups?
Rogers v Grimaldi is a narrow ruling in a district court about a celebrity name. It does not apply broadly to all branding and it's generally not worth a court battle to find out, since the filing is going to benefit the plaintiff.
That being said, there are consequences outside of pure legal issues to deal with in media production, which makes things like Apple's "allowance with their own restrictions" work. It's not a legal issue, but they can attack your post production just as well as making it a legal issue about filming.
>We still allow people to publicly criticize products.
Yes, but you're not allowed to harm people or businesses by knowingly making false statements about the product in your criticism. I would guess that a negative fictional portrayal of the product would run afoul of that. Satire often uses branding that is fake but similar enough to the real thing that it's obvious what it's meant to portray.
Hmm, I swear quite a few ads often attack rival brands by name, and make them out as significantly worse on questionable grounds. Like many console war era ads in the gaming industry, which were very happy to tear rivals to shreds over things that didn't match reality.
So it seems there are definitely ads that attack competitors or make false statements about their products, and they don't all get banned/spark lawsuits over it.
The plaintiff would have to show that they lost revenue as a result of the false statements, which I would think would be particularly difficult to do in that case, because portrayals made openly by a competitor are not as likely to harm the reputation of the company as are portrayals made by someone who does not obviously have anything to gain from the negative portrayal. But that's just a guess.
> Consumers are smart enough to know that fictional media is fictional.
Well, it depends. Generally there is some sort of minimal realism when it comes to objects; you'll never have a sports car lose to a clunker, and when it does, the movie plays it as surprising. If people treat your product in a certain way, even in fiction, consumers might think that they're just missing out on the association they're supposed to know.
The number of car chases I've seen in movies where motorcycles, taxis, and trucks keep pace with fast-moving vehicles makes me skeptical that is a real concern.
But let's say that we are concerned about consumers forming an incorrect association. If that was the case, we also would block brands from showing their products succeeding spectacularly in unlikely or impossible situations. If we don't trust consumers to treat fictional stories with caution, then we should also ban depictions of cell phones that have infinite reception in the middle of disasters, cars that allow drivers to walk away unharmed after crashes, or branded laptops that perform computing tasks that are beyond them.
Just a few weeks to a month ago, studios were joking about how Apple had a policy of making sure that movie villains never used iPhones. That's a clearly deceptive association Apple is trying to create, lots of evil people in the real world use iPhones.
The fact that we don't ban deceptively positive depictions of branded products is strong evidence that we do trust consumers to know the difference between fiction and reality.
>The fact that we don't ban deceptively positive depictions of branded products is strong evidence that we do trust consumers to know the difference between fiction and reality.
I would definitely not classify that as strong evidence. I'm not sure I'd classify it as evidence at all. There are many people that benefit considerably from consumers not being immune to psychological tricks in advertising, and they have a lot of money and a lot of incentive to make sure they're allowed to keep using those tricks on people.
The small subset of the population that is even aware of the magnitude of the manipulation that the people are subject to has comparatively little incentive to stop it from happening.
It's strong evidence that our law doesn't consider fictional portrayals of real products to be a problem. More importantly, it's strong evidence that we shouldn't be uniquely concerned over negative portrayals of trademarks.
If it's not a serious problem that brands are able to pay to portray their products in a positive light, then it also shouldn't be a serious problem that people can portray a brand in a negative light.
That's all that I was trying to get at -- that there's no reason for people to be uniquely concerned about negative product references in media if they're not also concerned about positive references.
>it's strong evidence that we shouldn't be uniquely concerned over negative portrayals of trademarks.
Again I'm not sure how it's evidence of that, but I agree that we should not be uniquely concerned about negative portrayals.
I see what you are saying now though, and I agree with you on that point.
Of course the people who make a lot of money off of positive advertising generally are the ones who stand to lose a lot of money from negative portrayals, and they also happen to have a lot of money, so it's not surprise that the law does not treat them equally.
> Consumers are smart enough to know that fictional media is fictional
Absolutely 100% no.
I was sitting in an embassy in Bamako,Mali watching some crappy TV show where Americans were getting shot at, chased and beaten to death by horrible people. At some point they said "We gotta get to Bamako".
It hit me that millions of people watching the show would think that's what Mali is like.
I was sitting in Bamako, and had been there for two months, and still had a great impact on me when I walked outside.
Consumers have virtually no way of knowing what's real and what's fiction these days.
Apple can't stop you from using their products in a movie. Trademarks only protect brand confusion, nobody is going to watch Transformers 17: Age of Voltron and think that the whole movie is an apple product because a robot turns into a iPad.
It's just a case of "if you don't use our product this way, we won't do cross promotions or pay for product placement with you anymore"
Advertising would very quickly shift from promoting your product, to actively trashing the competitor's.
The whole "Our soda taste so much better than the unnamed competitor's!" style advertising would quickly change to something like "X Corp Brand Soda is the biggest supporter of elephant extermination worldwide and uses lead to give their product their sugar-free sweetness. Is their soda really worth it? (haha, just kidding. Or are we?)"
Smaller companies would be absolutely crushed by larger corporations dragging them through the mud with political style ads all day.
If it failed in a way it can fail in the real world, ideally with examples, then there should be no problem. If the movie doesn't extrapolate and effectively libel the brand with untruths (e.g. they all do this, this is normal, etc), there should be zero problem with it.
Brands, music, trends, etc, are always a street with two-sides, yet we act like there is only one side worth consideration. e.g. These things are the part of our lives as well, and we made them what they are, so there is shared consideration, which is exactly what this judgment is saying.
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?
Same thing with government trademarks being used in things like video games - there’s a reason why Call of Duty doesn’t use the real crests of the USMC, USN, SAS, etc. and why they went in and reskinned all of the NYPD and FDNY vehicles in the Division. Should never be a problem, and yet studios kowtow to public agencies in this regard all the time.
Meanwhile, in this other fictional universe, a guy who looks just like you and posts the same things as you on HN is a child pornographer. Not to worry, our hero stops him.
Or perhaps it is your company that is involved in the pornography. And they are secret Nazis. Not to worry. All fictional.
> Plaintiff Ravi Batra, a bald, Indian-American lawyer involved in a judicial corruption scandal, filed a libel-in-fiction claim against the writers, producers and broadcasters of the television show Law & Order, claiming that an episode about a judicial bribery scandal that included a character who was a bald, Indian-American lawyer named Ravi Patel was defamatory. The court reached this holding after noting that no libel-in-fiction law suit in New York state court had survived a motion to dismiss in almost 25 years, and then denied defendants’ motion to dismiss.
Actual malice is additionally only necessary if the victim is a public figure.
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.
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.
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.
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).
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).
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.
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?
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.
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.
The very first that came to my mind is Jeep. In some countries it literally means SUV nowadays.The term is so ingrained that pretty much everyone says like this: 'He's got a BMW Jeep' or 'Look, that's a nice looking Jeep, surely it's Mercedes!'. The funniest thing is that nobody can ever see a real Jeep anymore,as nobody buys them( talking about Europe here).
In my country, "Jeep" is actually an official vehicle classification category from the transportation ministry, which includes cars such as Suzuki Jimny and Katana. FCA (and Ford) doesn't have official presence here anymore, so nobody probably bother to lobby the government against it.
How is this an example of trademark erosion? Fiat-Chrysler still owns the rights to the name and would easily be able sue a competitor that tried calling their vehicle a Jeep. Sure, it's colloquially used as a genericized trademark, but it's not a true example, unlike ones like aspirin, cellophane, escalator - or yes, trampoline.
People using it colloquially is exactly the thing that leads to trademark erosion.
Most eroded trade marks were previously owned and registered. It's not the registration that gives trademark protection. Trademark protection exists to protect the market place. It prevents companies from piggybacking on someone else's success.
But if the consumer doesn't think that "Jeep" is a mark, but a form factor, then no one is protected from any misunderstanding and it would be no longer a trade mark. Happened to Motorola in 2005 with "flip phone".
Really I think this illustrates best that trademarks are of dubious sanity. They attempt to police language but have no real control over it - pouncing like attack dogs to try to set an example to the kind of people who call all game consoles "Nintendos". In practice it seems like makework for lawyers which we need like a hole in a head - while to defend imaginary property in pursuit of imaginary lost profits.
I can't help but think society would be better served by using the court system for just about anything else including seeking damages from the gentleman who sold them the brooklyn bridge.
I would want some defense if someone was using say a trademark I made for kid entertainment vulgarly. Unfortunately marketing does sometimes mean policing language, if you would end up in an unfortunate position due to association
Jeep is actually enforcing this! In the game hill climb racer 2 there were two vehicles, "Jeep" and "Super Jeep". They had to change the names of the vehicles in the game... (To "Hill Climber").
There seemed to be tons of Jeep brand SUVs in Italy when I was there in October. Our rental car was one without asking for it, and there were four in a row at our hotel in Amalfi. Maybe they are popular in tourist areas?
Right now I live in London and all I see are European SUVs (Range Rover,MB,Jaguar,BMW) with an occasional Toyota or Lexus and maybe 1 Jeep out of 10000 other cars.
We've got it more or less the same in Lithuania with a lot of brands. "Pampers" is the default name for nappies. "Scotch" and "Xerox" are popular in Slavic languages,we never picked these up for some reason. Here,in the UK, the more popular ones are: Stanley Knife( any retractable knife) or Hoover( Vacuum cleaner).
For most of my life I didn’t know Jeep was a brand. It’s simply what you call most off-road vehicles in German. And looking at Wikipedia it seems like that is the case in most of Europe.
Hardly anybody remembers nowadays but Elevators and Fridges used to be brand names (of the Otis Elevator company and Frigidaire, respectively). So the endpoint of nobody remembering that your IP is IP has been reached in practice.
And more recently there's the PC, which became detached from IBM in record time.
And plenty of reason to think against. The "dg" sound doesn't come through in "Frigidaire" at all. It does have an actual letter "d" present, but with the "i" in between the sound becomes entirely different. Compare to refrigerator, where the "frige" portion of the word slants easily to rhyme with "ridge."
I can't go that far. What country are you from? I would have said the second syllable of "refrigerator", and the first syllable of "Frigidaire", both obligatorily rhyme with "ridge". There's no alternative.
"Frigidaire" should only really differ from "frigid air" in terms of prosody.
California. I suppose it's just a difference in accent, because I've always heard Frigid pronounced somewhat like fri-jid, with a clear enunciation between the parts, rather than the blended "dg" sound.
I'm actually assuming it pronounced with a more enunciated J sound than other poster accents seem to. I've always heard frigid with the emphasis on the "J" sound, rather than the softer blended j sound that produces the "dg" blend.
Wikipedia has a good list of trademarks in various states of becoming generic. It's interesting to read and think how silly it is how many terms still have protection despite not having any mental association with a particular company.
Aspirin didn't become generic because Bayer "took no action", it became generic because the trademark was surrendered as an explicit term in the Treaty of Versailles.
Most trademarks these days don't need to worry about being the literal spoils of war.
A trademark can only be defended in the face of an incursion into a protected use. If it's an "other field", then it can't be defended and the suit fails.
Fair enough and technically, I think you're right that it's not a "defense" with legal precedence (and therefore not an actual defense). But, I don't think that reality stops many companies from trying to stop the use of their brand or product in other fields because they believe they're protecting the brand.
That said, this AM General case seems to be a licensing case -- they want money for the use of the of their design. To some degree, I don't blame them since Activision is profiting from their work.
Suppose Activision sets a game in Los Angeles. A crucial mission involves a running battle down Hollywood Boulevard.
Should Graumann's Chinese Theater be entitled to money for the use of the appearance of their famous building?
To what extent should Google pay AM General, Ford, GM, Honda, Toyota, and so forth for the use of their vehicles' appearances in Streetview?
Finally: someone makes a Mail Simulator game, in which you take the role of being a first-class letter trying to get to a particular house on the other side of the continent. The role of postal vehicle is played by a https://en.wikipedia.org/wiki/Grumman_LLV
How much do they owe to Grumman, or to the USPS, or GM?
> To what extent should Google pay AM General, Ford, GM, Honda, Toyota, and so forth for the use of their vehicles' appearances in Streetview?
None. Google captured photos in public, they didn't put those vehicles there, they don't want them there and they don't add any value to streetview.
It's hard to compare that to Call of Duty where activision is intentionally modeling, texture mapping, animating and rendering someone else's design for the express purpose of adding value to their product.
Yep, so this serve the companies interest because they're trying to defend their trademark; even if they failed. I doubt Humvee is in danger of becoming a generic term (Jeep is more likely; I cannot tell you much my it annoyed me my ex called her Suzuki 4x4 a "Jeep" .. it's not a Jeep! It's a 4x4 or off-roader.." but if they enter into other trademark battles, the opposing council can't say "Well they haven't tried to defend their trademark before now..."
Interesting you bring up a point about Jeep. Never once in the US I've heard of a non-Jeep-made SUV referred to as a "Jeep". But back when I lived in Russia, every single SUV was referred to as a "Jeep". I don't even know of another word for SUV in Russian. Not trying to argue against you btw, I just personally find stuff like this interesting.
EDIT: just checked the wikipedia page for SUV in russian, and yep, in the second paragraph it says that SUVs are usually referred to as "Jeeps" in post-Soviet countries.
That term or similar ones exist all over the world. The concept of “SUV” is weird to begin with and doesn’t easily translate. Also, the ur-SUVs with truck chassis basically don’t exist outside North America. What the rest of the world call SUVs are X5’s and XC90’s and similar (“crossover” is used for smaller ones usually, despite no technical difference)
The common and slightly derogatory term for an X5/Q7/XC90 type SUV in Swedish is “Stadsjeep” (“city jeep”).
So yes Jeep is definitely not just a brand it’s like xerox and Walkman and used sloppily to refer to anything jeepy-looking.
The legend has it that when economic restrictions were relaxed towards the end of the SU someone bartered a huge quantity of a natural resource (coal?) for a huge number Jeep Grand Cherokee vehicles. So around that time they were only types of cars in SU - subpar Soviet cars and fancy American Jeeps.
This was probably ironic use, like calling your big car a tank. Like the other commenter says 'вездеход' is a related but different term - a specialized vehicle where the all-terrainness is the main purpose rather than the extra capability of a road vehicle.
Oh yeah, thanks for bringing it up, totally forgot about this one. Ironically, I've only heard of it being used when it comes to the actual Jeep-made vehicles and stuff like Rav4/Land Cruiser, so it seems to be used pretty accurately.
I would generally agree with the fact that most off-road cars themselves are not referred to as a "Jeep". But in my experience it has been quite common for people to refer to off-roading as "Jeeping", even if they do not have a Jeep.
Also, I have now read and typed the word Jeep so many times it seems like a really strange word...
i can answer that. russians are retarded (source: am russian). they see a new thing, and think anything written on the side is the name of it. Examples:
marker =flomaster. clearly flow master, name of the guys who made the first marker seen in russia.
hard drive =winchester. the model of the first hdd seen by russians.
and don't try to tell them black olives are olives. they're masleeny, translating to 'oily'. because the first green oluves russians saw were in water, and the black ones were in oil. so they're not olives.
not limited to russians. i hangul, pantyhose is 'pantysuitking'
Oh god, I completely forgot about "winchester", since it's been over a decade since I've heard someone say it. And yup, fully agree on all your points.
even with das coolz english words sneaking in, and markers becoming markers, it's half-assed, in true slav style. the new russian cool-kids did ditch 'winchester.' and replaced it with 'stiff disk'
however anything that's a usb stick, be it a modem or wifi card, is still 'flashka.' sticking a cell modem in a usb port makes it flash memory. i hear with usb-c new lingo will take over. anything usb-c will be called djest' (stiffness)
“Stiff disk”? I thought “zhestkiy disk” would translate to “hard disk” just as well, which is not that far off from the actual english name for HDD/Hard Disk Drive.
Having your name become the standard way to reference to the category of products you make is highly beneficial in terms of brand recognition. In some places every off-road may be a "jeep" and every photocopier may be a "xerox machine", but the companies still own their names and only the original holders can make "real" jeeps or xerox machines.
I was about to comment in your ex's defense that "Jeep" originated from General Purpose ("GP"), so it's only fair that it reverts to the generic, but it turns out that story is apocryphal.
Nonetheless, there does seem to be a tradition of the term "jeep" referring to military vehicles prior to it being given to the Willys/Ford WWII trucks, so it's all more than a little fuzzy, and it's understandable that outside the U.S. the word is more broadly applied.
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.
I have read an alternate strategy here is to license the use of the name for free. Them accepting the license implies that you have the legal rights to it, and licensed uses cannot be used as evidence for trademark erosion. I'm not a lawyer, but it sounds believable.
What's the cost-benefit analysis between choosing to do so, or not?
I'd guess that the cost of making a fool of one's self for trademark enforcement is usually pretty low... especially if your target customer doesn't make purchasing decisions based on it.
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.
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.
It goes both ways. Back when James Bond was sorta new, they had to buy or rent Aston Martins in order to make Bond look cool, now Aston Martin has to pay for Bond to drive one, in order for Aston Martins to look cool.
This makes me think of the report [1] that Apple won’t let movie bad guys have iPhones, or apparently soda companies won’t let you see branded soda cans being thrown in the trash in movies.
It does seem to me like it shouldn’t be in the public interest to allow brands to fully control representations of their products in media since that clearly provides a mechanism to stifle critical representations (or even simply accurate ones that don’t match the desired corporate image).
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?
> 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.
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.
To play devil's advocate, it's not just Activision using the HUMVEE name in the games, but also the likeness of the vehicle. This could be construed as a tacit approval by AM General of the CoD product line, which they may not wish to be associated with.
Personally, I think this should fall into the same sort of fair use as if a HUMVEE was used in a movie without AM General's approval.
Also, I think both sides are being a little childish amd ahould have come to terma outside of court.
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.
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.
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.
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.
Glock does kind of have a reputation as a low-end plastic Walmart gun. I doubt Counter-Strike is causing that reputation, but it certainly isn't helping
It also has a reputation of being one of the most reliable, simplistic and easy to use/maintain guns used by military and law enforcement around the world. So much so that other highly reliable Striker Fire handguns all basically cloned the Glock design (Smith & Wesson's M&P line, among others).
I'd bet there's influence coming from both ends - those who used them in video games and decided their first gun just couldn't possibly be a Glock, and those who see Special Operations guys using them and decided their first gun just had to be a Glock.
Yea I was gonna say, most real gun owners understand that reliability, recognizability and using ammo that's very common and available trump anything else. Glock 9mm is always a good choice.
They were really concerned about the use of the gun names in the 1.6 era I remember. Guns had alias names for some reason, presumably out of legal concerns.
Imagine a car racing game where when you crash at 100 MPH your car doesn't take on any cosmetic damage… Oh wait, that's all of them, because car makers can't bear the thought of their precious IPs all banged up. It's one of my pet peeves about car racing games with real cars.
Any cosmetic damage? You haven't played Forza Horizon recently then. While crashes aren't BeamNG.drive-level disassemblies, they do scratch up and can make cars undrivable (especially with full damage turned on).
Any they have a fairly comprehensive list of manufacturers and no cars are immune to damage in the game.
Yet another reason why Burnout Paradise, which contained cars inspired by real-world cars but different just enough to not invite lawsuits, was one of the best games ever - the manner in which the cars got deformed from simple dents to complete destruction was a major feature of the game. I'm sure they saved a good deal of money not having to license all the brand names too.
Just because people know the difference doesn't mean it doesn't have an effect on people's memories, opinions, and associations. The representation of a product in entertainment does make a difference -- product placement marketing works and has been academically studied.
I think that is because Ford was paying for product placement. I don't think the first amendment applies when you sign a contract with someone promising to advertise their product in exchange for money.
I would go as far as to argue that advertisements in general aren't considered protected speech on either end. Otherwise cigarette companies could still market to children.
Yes, though simulation games (which CoD isn't really) are rather akin to consumer reviews - the problem here isn't that they're depicting the car, the problem is that they're depicting it unfairly. It's like a bad review.
IANAL but I assume that argument would go into the "confusion / Polaroid" part of the suit. It should have to be egregious to be given consideration, but that's up to the judge.
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 :)
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.
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.
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.
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.