The months-long legal dispute of publisher Activision trying to take down an indie web-based incremental strategy board game to safeguard its lucrative Warzone trademark has hit a new lawful curve.
According to court documents obtained for a hearing which took place in the United States District Court for the Central District of California earlier in the month, plaintiff Activision admitted that defendant Warzone.com was the first one to use the Warzone trademark in 2017, nearly three years before Call of Duty: Warzone was officially released.
However, Activision still “argues that its use of the Warzone trademark as the title for its [Call of Duty] game is protected under the First Amendment” and as such seeks “massive damages” from the defendant for “reverse trademark infringement.” That in addition to forcing the indie developer to completely abandon the Warzone trademark for its web-base game.
Activision has now forwarded a motion to dismiss any and all counterclaims made by the defendant. Warzone.com has in return pleaded that if the motion to dismiss is accepted by the court, “it would signal that a corporate giant can claim the mark of a direct competitor without the claimant even being afforded an opportunity via discovery to explore the issues presented, merely because the defendant is using the claimant’s mark in the title of an expressive work.
It would mean that a large corporation can engage in reverse trademark confusion with impunity – even filing for the same trademark for the identical description of goods. Such an outcome would place a fist – not a thumb – firmly on the First Amendment side of the scale balancing the constitutional interests between Lanham Act protection and free expression.”
Activision sued Warzone.com several months back for using the same name as its own battle royale phenomenon despite Call of Duty being at least three years late. In a statement given to SegmentNext earlier today, the makers of Warzone.com reminded that “Activision made this a legal dispute after endless effort by us to resolve the situation and now we will fight to the very end.”