Intellectual Property Attorney

Video Game Developer Claims First Amendment Right To Use Trademarks In Video Games

Electronic Arts, developers of a variety of hugely successful and popular video games including The Sims and
NFL, filed a federal action in the Northern District of California on January 6, 2012, seeking a declaration that it has the right to depict several of Bell Helicopter’s military helicopters in its
Battlefield video games. Electronic Arts claims that its uses of the helicopters “are protected by the First Amendment and the doctrine of nominative fair use.”

Electronic Arts’ complaint specifically alleges that Bell Helicopter’s parent corporation, Textron, sent a cease and desist letter demanding Electronic Arts discontinue use of the depictions. In the complaint, Electronic Arts states that “the Bell-manufactured helicopters depicted in Battlefield 3 are just a few of countless creative video, audio, plot and programming elements that make up EA’s expressive work, a first-person military combat simulation.” Moreover, Electronic Arts claims that the packaging for
Battlefield 3 includes a disclaimer that the appearance of real weapons and vehicles does not constitute endorsement by the manufacturer and that the “helicopters are not highlighted or given greater prominence than any of the other vehicles within the game.”

Electronic Art’s declaratory judgment comes less than a year after the U.S. Supreme Court’s ruling that video games are a form of expression entitled to protection under the U.S. Constitution through the First Amendment. Following the Supreme Court’s ruling, other federal courts have ruled similarly. In one instance,
Hart v. Electronic Arts, Inc., using the First Amendment, Electronic Arts defeated a former college quarterback’s claim that his depiction could not be used without permission. A copy of that decision can be found

We will update the Grimes LLC blog as this case progresses.

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