United States District Court, N.D. California
For Mil-Spec Monkey, Inc., a California corporation, Plaintiff: Daniel W. Ballesteros, LEAD ATTORNEY, Hoge, Fenton, Jones & Appel Inc., San Jose, CA; Patrick N Lundell, Hoge Fenton Jones & Appel, San Jose, CA.
For Activision Blizzard, Inc., a Delaware Corporation, Activision Publishing Inc., a Delaware corporation, Defendants: Gilbert S. Lee, Karin G. Pagnanelli, Marc E. Mayer, LEAD ATTORNEYS, Mitchell Silberberg & Knupp LLP, Los Angeles, CA.
ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
RICHARD SEEBORG, United States District Judge.
In this action arising from claims of copyright and trademark infringement, plaintiff Mil-Spec Monkey, Inc. (" MSM" ) avers that the video game Call of Duty: Ghosts, created and published by defendant Activision Publishing, Inc. and Activision Blizzard, Inc. (collectively, " Activision" ) makes illicit use of MSM's " angry monkey" trademark, among the most popular morale patch designs the company promotes and sells online and through third parties. Activision, which bears no relationship to MSM, includes in Ghosts an image visually similar to MSM's " angry monkey" mark as a patch players may select to place on their avatars' uniforms in its multi-player game mode. When selected by players, the Ghosts " angry monkey" patch appears at various points during game play. It moreover appears in Activision's pre-release promotional trailer for Ghosts ' multi-player edition.
MSM brings five claims against Activision, alleging (1) copyright infringement; (2) trademark infringement under the Lanham Act; (3) false designation of origin; (4) California statutory unfair competition; and (5) common law trademark infringement. The last four claims, MSM avers, arise from consumer confusion as to the source, affiliation, and sponsorship of the " angry monkey" patch in the Ghosts video game. According to MSM, Activision's sole purpose for including such a patch in its game is deceitfully to play upon MSM's renown and goodwill in the marketplace and thereby earn unjust riches. Activision's present motion for partial summary judgment seeks a ruling in its favor on all of MSM's claims save its copyright infringement claim, on the sole contention that its use of MSM's " angry monkey" mark is protected by the First Amendment. Because Ghosts is an expressive work, and its disputed design bears some level of artistic relevance to the game and is not explicitly misleading--meeting both prongs of the test set forth originally in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), and adopted by the Ninth Circuit--Activision's motion must be granted.
A. MSM and the " Angry Monkey" Morale Patch Design.
MSM is a military supply and outfitting company that specializes in the design and creation of unofficial military morale patches. A morale patch, as MSM defines
it, is any wearable patch that military personnel are not authorized to wear or are strictly prohibited from wearing. According to MSM, members of the military frequently wear morale patches in unofficial contexts to express a sense of personal identity. Its morale patch bearing the disputed " angry monkey" mark is one of MSM's most well-known and popular patch designs.
MSM has since at least 2007 been selling a variety of " angry monkey" patches through its website and online store, in addition to promoting it online, at tradeshows, and via broad distribution of printed and electronic promotional materials. The Complaint depicts eleven " angry monkey" patches, in different color schemes, currently advertised for sale on MSM's website. MSM has registered its the mark with the United States Patent and Trademark Office for use in connection with its online store including clothing, patches, t-shirts, hats, bags and pouches and tactical gear. From MSM's " extensive use and promotion of its Angry Monkey Mark," the company avers, " such mark enjoys considerable goodwill, widespread recognition, and secondary meaning in commerce, and has become associated with MSM as its single source of origin." (Compl. ¶ 63.)
B. Activision and Call of Duty: Ghosts .
Activision designs, publishes, and distributes video games, including the highly successful Call of Duty series. Call of Duty 's military action fantasy games allow each player to assume the role of a military soldier and battle other players or a computer-controlled opponent to complete different missions on the game's digital battlefields. Novalogic, Inc. v. Activision Blizzard, 41 F.Supp.3d 885, 2013 WL 8845232, *2 (C.D. Cal. June 18, 2013). The original Call of Duty was released in 2003, followed by Call of Duty 2, Call of Duty 3, Call of Duty 4: Modern Warfare, Call of Duty: World at War, Call of Duty: Modern Warfare 2, Call of Duty: Black Ops, Call of Duty: Modern Warfare 3, and Call of Duty: Black Ops 2.
Ghosts, released in November 2013, is Activision's tenth installment in the series. Like its predecessors, Ghosts depicts highly realistic combat in a near-future, war-torn setting, featuring numerous characters, complex narratives, and advanced graphics. Its main protagonists are the Ghosts--a force of U.S. Special Operations personnel trained to conduct secret missions behind enemy lines. The game's premise is that, following the nuclear destruction of the Middle East, oil-producing nations in the Americas have formed an alliance known as " The Federation" that now poses a global threat against whom players must complete various missions. It incorporates dozens of contemporary weapons and vehicles that players can customize with modifications or attachments, and a variety of military equipment based on real-life counterparts or portrayals of future designs. The game also incorporates names and insignia of contemporary forces such as the National Security Agency, the United States Marine Corps, and the United States Air Force.
Ghosts features several game modes, including a single-player campaign with a predetermined plot, and various online multi-player modes in which participants can both collaborate as " squads" and compete against one another. Participants in multi-player mode can engage in combat on a number of different " maps" including geographic locations like the Gulf of Mexico, San Diego, the Caribbean, Antarctica, Venezuela, Brazil, and outer space; downloadable content offers players even more maps from which to choose. A new feature introduced by Activision is the option for gamers in multi-player mode to customize their soldier avatars by making selections from an extensive menu of options, including gender, uniform style, gear, accessories, and patches that ...