A federal judge has denied a motion by Electronic Arts to dismiss counter-claims in a trademark lawsuit filed by Textron Innovations and Bell Helicopter Textron related to helicopters depicted in its popular Battlefield games. Textron Innovations and Bell Helicopter Textron make the AH-1Z, UH-1Y and V-22 helicopters. They filed a lawsuit in 2008 claiming that the game's depiction of these helicopters infringed on Bell-manufactured vehicles in the "Battlefield Vietnam," "Battlefield Vietnam: Redux" and "Battlefield 2" video games.
The current lawsuit is the result of a failed settlement agreement between the companies related to Battlefield 3. The companies reached a confidential settlement agreement in February 2008 for other games in the series, but were unable to agree on the terms related to Battlefield 3, which was released in October of 2011.
Textron sent EA a cease-and-desist letter about the game in November of 2011, but EA decided to file a "non-infringement suit" in the Northern District of California in January of this year. EA's argument was that it had a right to use the helicopters under fair use laws and under First Amendment protection of free speech and expression. For those reasons it did not require a license.
In May Textron answered EA's arguments and added six counterclaims to the lawsuit including trademark infringement, California common law misappropriation, and violation of California Business and Professions Code Section 17200.
EA followed this action by asking the court to dismiss the counterclaims. U.S. District Judge William Alsup denied EA's request and vacated a hearing scheduled for September 6.
"[I]t is plausible that consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters," Alsup wrote in his decision. "Although consumers are unlikely to think Textron has entered the video-game business, Textron has alleged sufficient facts to support the inference that the game explicitly leads consumers to believe it is 'somehow behind' or 'sponsors' 'Battlefield 3.' …"
He went on to say that Textron had sufficiently established the plausibility of consumer confusion and denied EA's claim to protection under the First amendment and fair use.
You can read the ruling here (PDF).
Source: Courthouse News