Although a strong trademark usually favors the plaintiff in infringement actions, in cases involving expressive works subject to First Amendment protection it may actually weigh in favor of the defendant. In Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc., No. 14-cv-02361-RS, 2014 U.S. Dist. LEXIS 165943 (N.D. Cal. Nov. 24, 2014), the plaintiff owned a trademark registration for the “angry monkey” design shown below for wearable patches, which both parties agreed were extremely popular in the military world. Defendant Activision used a visually similar image in its military-simulation video game Call of Duty: Ghosts, which was one of over six hundred virtual “patches” players can use to customize their soldier avatars in the game:

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Reg. No. 3962658 owned byPlaintiff Mil-Spec Monkey, Inc.

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Image of “Angry Monkey”Used By Activision

The plaintiff sued for trademark and copyright infringement, and Activision moved for summary judgment on the trademark claims. The court began its analysis by noting that video games are expressive works entitled to as much First Amendment protection as motion pictures or any other artistic work. As such, the determination of whether Activision’s use of the “angry monkey” image violated the Lanham Act was governed by the test set forth in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), which has been adopted by the Ninth Circuit. Under that test, the use of a trademark in an artistic work is actionable only if the use of the mark (1) has no artistic relevance to the underlying work, or (2) explicitly misleads as to the source or content of the work. With respect to the first prong, the court found that the use of an “angry monkey” patch was artistically relevant in a military-simulation video game because it draws upon a trademark patch design that is extremely popular in the military world and thus furthers the game’s goal of creating an “authentic universe” which has some resemblance to how soldiers express their personal identity in the real world. Significantly, the court emphasized that because the Ninth Circuit is highly protective of speech, the standard for artistic relevance is low and need only be “above zero.”

With respect to the second prong, the court found there was no evidence that Activision used the design to mislead consumers into believing that Activision was somehow associated with the plaintiff. Finding there were no genuine issues of material fact with respect to either prong, the court accordingly granted Activision’s motion for summary judgment on the plaintiff’s trademark claims.