Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc.
74 F. Supp. 3d 1134 (2014)
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Rule of Law:
The use of a trademark in an expressive work is protected by the First Amendment and does not constitute trademark infringement if the use satisfies the two-pronged Rogers test: (1) it has some artistic relevance to the underlying work, and (2) it is not explicitly misleading as to the source or sponsorship of the work.
Facts:
- Mil-Spec Monkey, Inc. (MSM) is a company that designs and sells unofficial military 'morale patches.'
- Since at least 2007, one of MSM's most well-known and popular designs has been its 'angry monkey' mark, which it has registered as a trademark.
- Activision Publishing, Inc. (Activision) is a video game publisher that created the military-themed game 'Call of Duty: Ghosts.'
- 'Ghosts' is a realistic combat game featuring a multi-player mode where players can customize their soldier avatars.
- Within the game's multi-player mode, players can select from over six hundred patches to place on their avatars' uniforms.
- One of the 'standard-issue' patches available to all players is a design visually similar to MSM's 'angry monkey' mark.
- The 'angry monkey' design also appeared for approximately two seconds in a pre-release promotional trailer for the game's multi-player mode.
Procedural Posture:
- Mil-Spec Monkey, Inc. (MSM) filed a complaint against Activision in the U.S. District Court for the Northern District of California.
- MSM's complaint alleged claims for trademark infringement under the Lanham Act, false designation of origin, California statutory unfair competition, common law trademark infringement, and copyright infringement.
- Activision filed a motion for partial summary judgment, seeking dismissal of the four trademark-related claims.
- Activision argued in its motion that its use of the 'angry monkey' design in the video game was protected by the First Amendment.
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Issue:
Does the First Amendment bar trademark infringement claims against the creator of an expressive work, such as a video game, for using a trademarked image when the image is artistically relevant to the work and does not explicitly mislead consumers about the source or sponsorship of the work?
Opinions:
Majority - Judge Seeborg
Yes. The First Amendment bars trademark infringement claims against the creator of an expressive work when the use of the mark is artistically relevant and not explicitly misleading. First, the court established that video games like 'Call of Duty: Ghosts' are expressive works entitled to First Amendment protection, akin to books and movies, as held in 'Brown v. Entertainment Merchants Association'. The court then applied the two-pronged test from 'Rogers v. Grimaldi'. Under the first prong, the use of the 'angry monkey' patch has artistic relevance because the game aims to create a realistic military experience, and morale patches are an authentic part of that culture, allowing players to express personal identity. The court noted the standard for relevance is minimal, requiring only that it be 'above zero'. Under the second prong, Activision's use was not explicitly misleading. There was no overt statement or claim that MSM sponsored or was affiliated with the game. The game's packaging clearly identifies Activision as the source, and the mere use of the mark itself is insufficient to be considered 'explicitly misleading'.
Analysis:
This decision solidifies the application of the 'Rogers' test as a robust First Amendment defense for video game creators against trademark infringement claims. It affirms that the 'artistic relevance' prong sets a very low bar, allowing creators significant leeway to incorporate real-world elements to enhance realism. This precedent strengthens the legal position of creators of all expressive works (games, films, books) to use trademarks nominatively or as part of a realistic setting, provided they do not explicitly deceive consumers about endorsement.
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