Calling All Gamers

by Winthrop & Weinstine, P.A.
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As some of you may know, the most recent installment of the Call of Duty franchise is set to hit stores later this fall–November 5 to be exact.

Click here to see video.

As usual, it appears that they are continuing to up the ante, this time tapping Academy Award winning writer Stephen Gaghan for the story.

In lesser known news, the purveyor of the above game–Activision–recently one a battle of its own when it halted a trademark infringement claim fired by NovaLogic based on the use of the term Delta Force in the Call of Duty: Modern Warfare games.  A federal court judge in the Central District of California dismissed the majority of NovaLogic’s claims on summary judgment on June 18, 2013.  The primary basis for the decision was First Amendment principles.  (Decision here).

The Court started by quoting an increasingly significant quote from the Supreme Court in Brown v. Entertainment Merchant’s Assoc., 131 S.Ct. 2179 (2011):

Like the protected books, plays, and movies that preceded them, video games communicate ideas – and even social messages – through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection…. [W]hatever the challenges of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communication appears.

The Court then held that the use of “Delta Force” in its expressive and descriptive, and its addition to the storyline, outweighed any potential confusion that exists.  Candidly, I may be one of the few people playing Call of Duty that recalls the Delta Force games.  I don’t believe they ever came close to attaining the level of success of the Call of Duty franchise.  This seems to me to be the correct decision, as it looks like NovaLogic was simply trying to obtain a windfall.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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