## Facts

- Mil-Spec Monkey, Inc. (MSM) designed and sold “morale patches” and related goods bearing its registered “angry monkey” trademark, used on clothing and tactical gear.
- Activision Blizzard, Inc. published *Call of Duty: Ghosts*, a military-themed first-person shooter that permits avatar customization, including selection of uniform patches.
- The game offered more than 600 patches; one patch design was an “angry monkey” image that MSM alleged was confusingly similar to its trademark.
- The challenged patch also appeared briefly in a prerelease promotional trailer as a small image on screen for approximately two seconds.
- The game’s packaging and branding identified Activision and *Call of Duty* as the source of the product.
- MSM sued for Lanham Act trademark infringement and false designation of origin, plus parallel California statutory unfair competition and common law trademark infringement.
- Activision moved for partial summary judgment on the trademark-related claims based on First Amendment protection for expressive works.

## Issues

1. Whether *Call of Duty: Ghosts* is an expressive work entitled to First Amendment protection in the trademark context.
2. Whether use of the allegedly infringing patch is actionable under the Rogers framework as applied in the Ninth Circuit because it (a) lacks artistic relevance or (b) is explicitly misleading as to source, sponsorship, or content.

## Decision

- The court granted Activision’s motion for partial summary judgment on all trademark-related claims.
- The court held the video game is an expressive work protected by the First Amendment.
- The court found the patch’s inclusion had at least “above-zero” artistic relevance to the game’s realism and customization features.
- The court found no explicit misleadingness: there was no overt claim or explicit statement that MSM produced, sponsored, or endorsed the game or its content.
- Because the First Amendment barred the Lanham Act claims under the Rogers analysis, the same result applied to the related state-law and common law trademark/unfair competition claims premised on the same use.

## Legal Principles

- Video games are expressive works entitled to First Amendment protection.
- Under the Rogers test (as applied in the Ninth Circuit), use of a trademark in an expressive work is protected unless:
  - the use has no artistic relevance to the work, or
  - the use is explicitly misleading as to the source or content of the work.
- The “artistic relevance” threshold is low; the inquiry does not turn on the defendant’s asserted commercial motive so long as relevance is not zero.
- “Explicitly misleading” requires an overt indication or explicit misstatement of endorsement or source; potential or implicit consumer confusion is insufficient.
- First Amendment limits apply equally to trademark infringement, false designation of origin, and substantially similar state-law trademark and unfair competition claims based on the same expressive use.

## Conclusion

The court concluded that the game’s use of an angry-monkey patch design was protected expression because it contributed to the work’s military realism and customization and was not accompanied by any explicit statement or overt signal of MSM’s sponsorship, warranting summary judgment for Activision on all trademark-based claims.


Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc., 74 F. Supp. 3d 1134 (N.D. Cal. 2014)