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As if Electronic Arts doesn’t have enough litigation on its plate from rivals, athletes, insurers, and game creators, the video game publishing giant is now involved in a fight with the military-industrial complex. On Friday, EA went to a California court to get a declaration that it has a right to depict real-life helicopters in its Battlefield games. The company says it is under threat from Textron, which manufactures military helicopters and is asserting that graphic depictions of three of its products constitute trade dress infringement and dilution.
This isn’t the first time that EA has fought Textron over video game versions of helicopters.
In December 2006, Textron sued EA in Texas court on trademark claims. The two companies eventually reached an undisclosed settlement that put an end to that lawsuit, but before that happened in 2008, a judge denied EA’s attempt to dismiss the lawsuit for unregistered trademarks and the purportedly questionable dilution claim.
Much has happened since the original lawsuit ended.
EA has produced new versions of its successful Battlefield line of games, and the Supreme Court has found that video games qualify for the same kinds of expressive free speech rights enjoyed by other entertainment businesses.
Now, EA is looking for declaratory relief, saying that on Dec. 21, Textron lawyers demanded that EA cease its depiction of three of its aircraft in Battlefield 3. “The parties have been unable to resolve their dispute,” says EA’s complaint, according to Kotaku. “EA therefore has a reasonable and strong apprehension that it will soon face a trademark and/or trade dress action from Textron.”
By filing an anticipatory action, EA takes the opportunity to choose its jurisdiction, and there shouldn’t be much surprise that it has chosen California, which has traditionally been a hospitable zone to defend attacks on the First Amendment.
EA says that use of Textron’s three aircraft, including the AH-1Z Viper, the UH-1Y transport helicopter, and the V-22 Osprey, constitute fair use, and also point out that the packaging on Battlefield 3 includes the disclaimer that the appearance of real-world weapons and vehicles doesn’t constitute any official endorsement by their maker.
In its 2006 lawsuit, Textron asserted that “EA’s retention and use of [its] marks and images are likely to create confusion in the mind of the ordinary consumer as to the source, affiliation, and/or sponsorship of the helicopters depicted.”
Here’s a look at the real-life and video-game versions of the Viper:
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