Activision Blizzard, Inc., maker of the successful "Call of Duty" gaming franchise, recently found itself the subject of a trademark infringement lawsuit alleging infringement of NovaLogic Inc.'s "Delta Force" marks. The complaint, filed in California federal court, alleges that Activision's "Call of Duty Modern Warfare 3" incorporates NovaLogic Inc.'s registered trademarks for "Delta Force" and this symbol.
Plaintiff NovaLogic first released the "Delta Force" game
in 1998. "Delta Force" is a first or third person shooter
game that spawned a series of successful spinoffs which follow the
exploits of members of the elite military Delta Force unit. The
logo of the Delta Force unit in NovaLogic's games, as described
in NovaLogic's complaint is "a delta symbol with a
vertical lightening rod superimposed onto a dagger."
Defendant Activision's Call of Duty franchise is routinely
cited as one of the most successful gaming franchises ever created.
In fact, Activision claims "Modern Warfare 3"
made $1 billion a day quicker than James Cameron's Avatar.
Players of Modern Warfare 3 play as members of various special
forces units, including Delta Force, as they battle various enemies
bent on world domination.
The alleged infringing mark in Call of Duty serves to identify
"Delta Force" members in the Call of Duty storyline, and
the difference between the two marks is described in
NovaLogic's complaint as "[the] lightening rod is
horizontal rather than vertical and a portion of the delta sign is
set behind the dagger blade rather than being superimposed."
An image of the mark can be found here.
Both the marks and the phrase "Delta Force" allegedly
refer to a branch of Army Special Operations known as 1st Special
Forces Operational Detachment Delta ("1st SF-FOD"),
colloquially known as the "Delta Force." The Army,
however, denies the existence of the "Delta Force" and
does not claim ownership of either of the marks or the term
"Delta Force." NovaLogic claims that any use of the
phrase "Delta Force" and the logo only creates the
association with the "non-existent" military unit because
of NovaLogic's Delta Force series of games.
This dispute tees up an interesting question for the Court: Can a
logo and phrase associated with a widely recognized military unit,
such as Delta Force, be trademarked when the government denies its
existence? How the Court answers this question could have a
significant effect on Activision's Call of Duty franchise,
which relies heavily on allowing players to experience a
fictionalized version of serving with the U.S. Army's elite,
and often disavowed, special forces units.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.