California Trademark Attorney® Blog

Electronic Arts Cites First Amendment Protection for Video Games in Trademark Infringement Dispute

January 16, 2012

game-controller.jpgCalifornia - Electronic Arts, Inc., a leading American developer, marketer, publisher, and distributor of video games, is asking a federal judge to grant that it has a First Amendment right to depict real-life military helicopters in video games without the authorization of the aircraft's manufacturer. The plea stems from a trademark infringement dispute that erupted between Electronic Arts and Textron, the parent company of Bell Helicopter, after talks over use of the trademark broke down.

The lawsuit, filed Friday by the video game company in Northern California federal court, was a pre-emptive legal action against Textron. The complaint states that on December 21, attorneys for Textron demanded that Electronic Arts immediately stop its depiction of three Bell Helicopter craft in its 'Battlefield 3' video game.

Statements from the Electronic Arts lawsuit said, "The parties have been unable to resolve their dispute. Electronic Arts therefore has a reasonable and strong apprehension that it will soon face a trademark and/or trade dress action from Textron.

In its preemptive complaint, Electronic Arts maintains that its depiction of the three aircraft "are protected by the First Amendment and the doctrine of nominative fair use." The lawsuit also states that packaging for the Battlefield 3 video game features a disclaimer stating that the appearance of real-world weapons and vehicles does not represent any official endorsement by the manufacturer (Textron). The complaint also states that the Bell-manufactured aircraft are not highlighted or featured exclusively over any other vehicles or aircraft within the video game.

"The Bell-manufactured helicopters depicted in Battlefield 3 are just a few of countless creative visual, audio, plot and programming elements that make up Electronic Arts' impressive work, a first-person military combat simulation," says the lawsuit.

The preemptive action might seem unusual had it not been for June's landmark Supreme Court ruling that gives video games the same free speech protections as other expressive works like music, movies, and books. A preemptive lawsuit, also known as a declaratory relief action, occurs when a party initiates a lawsuit because it fears being sued. The purpose of this legal action is to decide rights so that a party can operate its business with certainty with regard to possible legal issues.

After the June Supreme Court ruling, Electronic Arts was victorious in a similar trademark dispute involving the unlicensed use of likenesses when a federal judge ruled that the video gamer's identifiable depiction of a real college quarterback, without his permission, was within its First Amendment rights to free expression.