## Facts

- Electronic Arts, Inc. (EA) developed and marketed *Battlefield 3*, a realistic first-person military combat video game.
- The game depicted by name and image three military helicopters designed/manufactured by Bell Helicopter Textron: the AH-1Z, UH-1Y, and V-22.
- The helicopters appeared in gameplay as transport and combat vehicles and were featured in marketing materials as part of the game’s realism.
- EA’s packaging included a disclaimer stating that vehicle depictions did not indicate affiliation or sponsorship.
- EA and Textron previously resolved a dispute about helicopter depictions in earlier *Battlefield* titles through a confidential settlement (2008).
- EA later paid Textron Innovations for a license to use certain vehicles in a *Battlefield: Bad Company 2* “Vietnam” booster pack (2010).
- Before releasing *Battlefield 3*, EA notified Textron of its intent to use the helicopters; Textron responded that unlicensed use might infringe and dilute its intellectual property and requested more information.
- EA filed a declaratory judgment action seeking a ruling of noninfringement and nondilution; Textron entities counterclaimed under the Lanham Act and California law.

## Issues

1. Whether EA’s depiction and naming of the helicopters in an expressive video game were protected by the First Amendment such that Textron’s trademark and trade dress counterclaims should be dismissed at the pleading stage.
2. Whether nominative fair use barred Textron’s Lanham Act and related state-law claims as a matter of law on a Rule 12(b)(6) motion.
3. Whether Textron plausibly alleged trademark, false designation, and trade dress claims based on the prominence and marketing use of the helicopter depictions.

## Decision

- The court denied EA’s Rule 12(b)(6) motion to dismiss Textron’s Lanham Act and California counterclaims.
- The court treated *Battlefield 3* as an expressive work but declined to resolve the First Amendment defense on the pleadings.
- The court declined to decide nominative fair use at the pleading stage, characterizing it as fact-dependent.
- The court granted in part and denied in part EA’s request for judicial notice.
- In an earlier order, the court denied Textron’s motion to dismiss, stay, or transfer EA’s declaratory judgment action.
- The case later settled and was dismissed with prejudice.

## Legal Principles

- Video games can qualify as expressive works, but trademark claims are not automatically barred at the pleading stage merely because a work is expressive.
- First Amendment limits on trademark liability in expressive works may require inquiry into artistic relevance and whether the use explicitly misleads consumers about source or sponsorship, which can demand factual development.
- Nominative fair use generally turns on factual questions, including whether use of the mark was reasonably necessary to identify the product and whether the use suggested sponsorship or endorsement.
- A disclaimer may be relevant to confusion or endorsement but does not necessarily defeat trademark or trade dress claims on the pleadings.
- Where a complaint plausibly alleges prominent use of marks or trade dress in both the product and its marketing, likelihood-of-confusion and related Lanham Act issues ordinarily are not resolved on a motion to dismiss.

## Conclusion

The court allowed Textron’s trademark and trade dress counterclaims to proceed, holding that EA’s First Amendment and nominative fair use defenses could not be resolved on the pleadings given fact questions about realism, marketing prominence, and potential consumer belief in sponsorship or endorsement.


Electronic Arts, Inc. v. Textron Inc., 103 U.S.P.Q.2d 1984 (N.D. Cal. 2012)