
'Call of Duty' wins First Amendment victory over use of Humvees - danso
https://www.hollywoodreporter.com/thr-esq/call-duty-wins-first-amendment-victory-use-humvees-1287882
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CM30
Have to be honest, I've always thought complaints about trademarked products
in works of fiction were a silly thing to begin with. Why shouldn't a
fictional universe feature products and businesses found in the real world?
Are we supposedly to randomly assume all other universes don't have humvees or
macbooks or the Red Cross? Who's to say the same
people/companies/organisations would even be responsible in that work of
fiction?

The law should basically just say there's no trademark violation in featuring
a real world product/service in a fictional work so long as it couldn't
reasonably be confused as a piece of marketing by the creator of said product
or person. Obviously the work shouldn't be about say, Mickey Mouse, but it
should be perfectly fine to feature say, Disney and their products as
background elements in a fictional work without the approval of Disney.

Just seems ridiculous to have it work any other way.

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saagarjha
What if I took your product and had it fail spectacularly in my movie?

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danShumway
Why should your product be protected from that?

Consumers are smart enough to know that fictional media is fictional. If we're
not protecting products from negative reviews, opinion peices, or satire --
then fictional stories seems to me like a really weird place to draw a line.

What if I took your product and made a joke about it having ties to a cult?[0]
I don't see any reason to treat fictional movies and games like they're a
special medium.

I also assume we're not proposing that people should be banned from making
fictional stories that feature real events and people. So jumping off of that
point, what makes a movie that incorporates a public, trademarked brand
different than a movie that incorporates a living public figure?

[0]: [https://entertainment.theonion.com/new-sesame-street-
charact...](https://entertainment.theonion.com/new-sesame-street-character-
shudders-to-life-as-produ-1840391716)

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kube-system
Being smart enough to know something is fake is not enough to be
psychologically unaffected by it.

[https://en.wikipedia.org/wiki/Product_placement#Research](https://en.wikipedia.org/wiki/Product_placement#Research)

~~~
danShumway
But to follow up, why should we protect brands from negative psychological
associations in movies?

We still allow real products to be used in satires, even though satires could
have the same unconscious effects you reference. We still allow people to
publicly criticize products. We still allow real public figures and events to
be referenced in fictional media, even though the same psychological effects
you reference could negatively impact people's perception of them as well.

I still don't see anything that's special about a trademark that means it
needs extra protection in this area.

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Supermancho
> We still allow real products to be used in satires, even though satires

The brand owners still get licensing fees whenever real brands are shown, in
movies

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danShumway
I am not a lawyer, and I'd welcome input from a real lawyer. But I am almost
certain that satirical references to real brands are protected by fair use. I
similarly suspect that licensing is not a legal requirement for movies.

I would be curious how you square your claim with _Rogers v Grimaldi_ [0], or
more directly, how you square it with the outcome of the very case we're
commenting on.

[0]:
[https://en.wikipedia.org/wiki/Rogers_v._Grimaldi](https://en.wikipedia.org/wiki/Rogers_v._Grimaldi)

~~~
Supermancho
[https://www.inta.org/TMR/Pages/vol99_no6_a2.aspx](https://www.inta.org/TMR/Pages/vol99_no6_a2.aspx)
Pay attention to huge vulnerabilities like (6) the defendant’s intent in
adopting the mark, wherein the defendant will have to show how a property was
not used for a purpose, that the plaintiff will take issue with. Does anyone
remember the Ford suit to stop news outlets from showing jihadists driving
around in Ford pickups?

Rogers v Grimaldi is a narrow ruling in a district court about a celebrity
name. It does not apply broadly to all branding and it's generally not worth a
court battle to find out, since the filing is going to benefit the plaintiff.

That being said, there are consequences outside of pure legal issues to deal
with in media production, which makes things like Apple's "allowance with
their own restrictions" work. It's not a legal issue, but they can attack your
post production just as well as making it a legal issue about filming.

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Keverw
Nice! I know Books and Movies have first amendment protections, but some
reason people debate about it for games. I remember another similar story on
HN a while back and someone said they were contacted to remove a mailbox they
posted to a model sharing site because it looked too similar to a real life
mailbox. But as far as I know they didn't push back, but I felt that company
was abusing things, especially since they sent a DMCA which doesn't cover
trademark disputes - but I guess most companies don't care and will take it
down if they get a notice since they feel it's the courts job to decide if it
was valid or not if someone decides to fight back. I guess legally, companies
just act as a middleman doing a process so they won't be held legally liable
even if the notice is wrong so they can keep their safe harbor instead of
picking sides.

Then I remember the case where a real life club got mad at grand theft auto.
But in the end it was decided people wouldn't confuse a night club in real
life with one in a virtual world. Probably would be the same for that mail or
car example too. And they didn't even use the logo, the shape or colors of
things can count as a trademark.

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ezoe
I really can't understand how could a lawsuit like this were valid in the
first place.

The purpose of trademark is to prevent the counterfeit item be recognized as
the same as trademarked item.

If the item is truly meant to refer the trademarked item, in this case
realtime 3DCG rendering, there is no violation of the trademark. Isn't it?
It's the same reason I can write any trademarked term here and not violate the
trademark law.

US law system is beyond my understanding.

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EamonnMR
Maybe this will mean that games won't have to make up whacky (and confusing)
off-brand names for every gun.

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danbolt
I love those little ingame props, or they can reflect a lot of interesting
nuances and opinions about weapons.

~~~
dehrmann
Or on "The Simpsons." Things like the Kwik-e-Mart, Krusty Burger, Duff Beer,
and characters like Rainier Wolfcastle are more amusing than what they parody.

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ummonk
I'm not sure how this will go on appeal and to what extent it will have
general applicability as precedent. It would be great if e.g. racing
simulators could depict cars without needing licensing (and imo it's
ridiculous that they can't already do so, given that there isn't really any
scope for confusion as to who is actually selling the car).

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sharker8
I honestly don't know which is worse, a contract manufacturer complaining
about unlicensed brand depictions or what happens in hollywood:
[http://movieline.com/2013/02/06/military-entertainment-
compl...](http://movieline.com/2013/02/06/military-entertainment-complex-
hollywood-pentagon-relationship-battleship-zero-dark-thirty/)

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ryanmarsh
The HMMWV is on its way out. Orders for the vehicle are decreasing and will
(or maybe already have) stopped. The vehicle is being replaced by the JLTV and
MRAP (among others).

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tehjoker
Amazed that art (albeit military propaganda art) won out over the wishes and
possibility of merchandising by an actual war profiteer.

~~~
kyuudou
That's because the video games industry gets tons of money from the military.

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greggman3
What about Gran Turismo. AFAIK they license all the cars. Does this mean they
won't have to license them anymore?

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smabie
I probably don't know what I'm talking about, but it seems to me that many
companies pursue legal action that is against their own interest. Surely,
Humvees in CoD could only help the brand, no? Moreover, the fact that they
don't even sell any consumer products in the first place makes the entire suit
even more dubious. The use of Humvees in CoD is going to sow confusion among
the military purchasing officers and they're no longer going to buy them? It
just doesn't make any sense.

I'm beginning to think that a lot of these types of lawsuits stems from the
lawyers themselves recommending them and somehow convincing the management to
go along with it. After all, they're really the only party that wins
regardless of the outcome of the case.

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tinkertamper
I also don't know what I'm talking about, but I think one of the core
responsibilities of a trademark owner is that you establish a history of
defending it. I heard once that if you don't do that you risk losing control
of your rights to that property. Any smarty pants on here able to confirm/set
me straight?

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djsumdog
Yep, so this serve the companies interest because they're trying to defend
their trademark; even if they failed. I doubt Humvee is in danger of becoming
a generic term (Jeep is more likely; I cannot tell you much my it annoyed me
my ex called her Suzuki 4x4 a "Jeep" .. it's not a Jeep! It's a 4x4 or off-
roader.." but if they enter into other trademark battles, the opposing council
can't say "Well they haven't tried to defend their trademark before now..."

~~~
filoleg
Interesting you bring up a point about Jeep. Never once in the US I've heard
of a non-Jeep-made SUV referred to as a "Jeep". But back when I lived in
Russia, every single SUV was referred to as a "Jeep". I don't even know of
another word for SUV in Russian. Not trying to argue against you btw, I just
personally find stuff like this interesting.

EDIT: just checked the wikipedia page for SUV in russian, and yep, in the
second paragraph it says that SUVs are usually referred to as "Jeeps" in post-
Soviet countries.

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doperroper
i can answer that. russians are retarded (source: am russian). they see a new
thing, and think anything written on the side is the name of it. Examples:
marker =flomaster. clearly flow master, name of the guys who made the first
marker seen in russia. hard drive =winchester. the model of the first hdd seen
by russians. and don't try to tell them black olives are olives. they're
masleeny, translating to 'oily'. because the first green oluves russians saw
were in water, and the black ones were in oil. so they're not olives.

not limited to russians. i hangul, pantyhose is 'pantysuitking'

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filoleg
Oh god, I completely forgot about "winchester", since it's been over a decade
since I've heard someone say it. And yup, fully agree on all your points.

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doperroper
even with das coolz english words sneaking in, and markers becoming markers,
it's half-assed, in true slav style. the new russian cool-kids did ditch
'winchester.' and replaced it with 'stiff disk'

however anything that's a usb stick, be it a modem or wifi card, is still
'flashka.' sticking a cell modem in a usb port makes it flash memory. i hear
with usb-c new lingo will take over. anything usb-c will be called djest'
(stiffness)

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filoleg
“Stiff disk”? I thought “zhestkiy disk” would translate to “hard disk” just as
well, which is not that far off from the actual english name for HDD/Hard Disk
Drive.

