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District court grants summary judgment in favor of publisher of military-action video game Call of Duty: Ghosts on trademark infringement claims brought by military supply and outfitting company, finding that inclusion of plaintiff's trademarked "angry monkey" military patch in video game is First Amendment protected expression.

Plaintiff Mil-Spec Monkey, Inc. (MSM) is a military supply and outfitting company that specializes in designing unofficial military morale patches, which military personnel wear in unofficial contexts as an expression of personal identity. Since at least 2007, MSM has sold patches and other products bearing its registered angry monkey trademark. Defendant Activision Blizzard, Inc., is the publisher of the popular military-action video game Call of Duty: Ghosts, the tenth installment in a series of Call of Duty video games. MSM sued Activision for copyright infringement, trademark infringement under the Lanham Act, false designation of origin, California statutory unfair competition, and common law trademark infringement, alleging that Activision used images visually similar to MSM’s angry monkey mark in Ghosts.

Ghosts allows players to play single-player and multiplayer campaigns in which they portray soldiers in realistic military combat, incorporating themes from actual United States military organizations such as the NSA, Marine Corps, and Air Force. In multiplayer mode, players can customize the appearance of their soldier avatars, including the soldier’s clothing, gender, uniform, gear, accessories, and uniform patches. One of the more than 600 uniform patches available in the game – and one of 32 patches that are selectable at the start of the game without being “unlocked” – bears the allegedly infringing angry monkey mark. The angry monkey mark also appears for two seconds as a small image at the bottom of the screen in an Activision prerelease video trailer forGhosts.

Activision moved for summary judgment on the four trademark-related claims, arguing that its use of the angry monkey design in Ghosts is protected by the First Amendment. The court granted the motion, finding that Ghosts – an interactive video game with compelling narrative, realistic graphics, distinctive music and sound, and distinctive characters, among other things – was an expressive work entitled to First Amendment protection under the Supreme Court’s decision inBrown v. Entertainment Merchants Association.

Rejecting MSM’s argument that a mark must be a “cultural icon” in order to render its use in an expressive or artistic work nonactionable, the court relied on a two-part Ninth Circuit test that protects the use of a trademark in an artistic work unless (1) the use of the mark hasno artistic relevance to the underlying work whatsoever or (2) it has some artistic relevance, but explicitly misleads as to the source or the content of the work. The court found that the use of the angry monkey mark inGhosts has artistic relevance because the game seeks to create a realistic military environment, complete with an authentic universe of morale patches. Although MSM objected to the mark’s artistic relevance on a number of grounds – including that Ghosts players may choose not to select the angry monkey patch, that patches are prohibited by the military for official use, and that the patches are available only in multiplayer mode – the court concluded that the game’s use of the mark had at least some artistic relevance. In addition, MSM produced no evidence that Activision actively sought to mislead consumers into believing that Ghosts was endorsed by or had a relationship with MSM, and the court considered anecdotal evidence of actual confusion by consumers to be legally irrelevant.