Activision and developer of 2017 strategy game Warzone in legal fight over Warzone trademark
Duty calls.
Activision is embroiled in a trademark lawsuit with the developer of a strategy game called Warzone.
The mega-publisher filed a suit seeking a declaration that Activision's use and registration of the trademark's Warzone and Call of Duty Warzone do not infringe on the trademark rights relating to the free-to-play, turn-based Warzone strategy game.
Warzone the strategy game came out in 2017. Activision's battle royale launched three years later, in 2020.
The suit, filed on 8th April in the US District Court for the Central District of California, comes in response to a threat of litigation from Randy Ficker, the Washington-based developer of Warzone.
In June 2020, Activision filed applications for registrations of the trademarks of Warzone and Call of Duty Warzone - just a few months after the battle royale came out.
Then, in October, Warzone.com, LLC filed applications for registration of the trademark Warzone. Oppositions to each other's trademark attempt followed in November. This opposition is currently pending before the USPTO.
Activision said Ficker's lawyer sent Activision a cease and desist letter on 20th November, demanding Activision change the name of its games, stop using Warzone's Warzone mark, and abandon the trademark applications. Activision disputed this in a letter dated 16th February 2021.
Apparently Activision and Ficker couldn't sort out the dispute between them, and on 4th March Ficker's lawyer threatened legal action alongside a monetary settlement demand. Activision made a counterproposal, which was rejected on 5th April. The negotiations ended there, which brings us to this suit from Activision.
Activision claims its use of the Warzone title is both protected by the First Amendment and "unlikely to cause consumer confusion", and therefore wants a declaration it has not infringed on the Defendant's "alleged" trademark. In short, it wants its Warzone trademark registered.
"Activision's Call of Duty: Warzone could not be more different from Defendant's game, a low-budget, niche virtual board game like Hasbro's Risk where players take turns moving numbers (representing 'armies') across a map of the world," Activision's lawyers argue.
"Indeed, it is inconceivable that any member of the public could confuse the two products or believe that they are affiliated with or related to each other.
"Nevertheless, Defendant has claimed that Activision's Call of Duty: Warzone infringes Defendant's alleged trademark rights in the word 'Warzone'. Defendant specifically has threatened to seek an injunction preventing Activision from using the word 'Warzone,' massive damages for the alleged injury to Defendant's alleged 'brand,' and an order from the US Patent and Trademark Office preventing Activision from registering a trademark in the title of Activision's popular game."
Now, Ficker has launched a GoFundMe page calling for donations to be used in the legal battle.
"In 2017, I launched my indie game Warzone," reads the page. "In 2020, Activision launched Call of Duty: Warzone and is now suing me to steal the name (banking on my limited resources).
"I love making games and I've dedicated the last 10+ years of my life towards making exactly one game: WarLight, with a sequel named Warzone. It's a multiplayer turn-based strategy and negotiation game inspired by Risk.
"This game has been my full-time job and only source of income for a decade. I have no employees, I make Warzone all by myself and hope that I can continue to work on it for the rest of my life.
"It surprised me when Activision named their new game Call of Duty: Warzone.
"It shocked me, though, that they filed for the trademark of Warzone. That's the exact same name as my game!
"Trademark law says that whoever uses a name first gets rights to it, just like someone can't make a game named Minecraft today. However, Activision thinks these laws don't apply to them. They're suing to block me from claiming my rights to the Warzone trademark, even though I launched a game named Warzone years before them!"
Ficker called Activision's lawsuit "absurd", and said "I get contacted all the time from people who are confusing our two games".
"People tell me all about how their Xbox can't connect, or how their PlayStation 4 got hacked, how they wish they could carry teammates, etc. My game isn't even on Xbox or PS4. I send the same reply to each of them: 'Warzone and Call of Duty: Warzone are different games. You should contact Activision.' "
Ficker added that Call of Duty: Warzone streamers have taken over the Twitch category he set up for his Warzone game.
"The regular streamers of my game are frustrated by this, but apparently it's inconceivable to Activision that this could happen," he said.
Ficker claimed Activision markets Call of Duty: Warzone as Warzone only, adding to the confusion.
"It sure seems to me that they call their game Warzone, not consistently Call of Duty: Warzone as they're alleging in the lawsuit.
"After all this, Activision still claims that it's inconceivable that any member of the public could confuse Warzone with Warzone.
"Activision's actions have buried us on Google and the App Stores, where we used to be the #1 result for our own name."
Ficker's GoFundMe target is $50,000. So far it has raised $12,515 from 457 donors. Meanwhile, the Court has yet to make a decision on Activision's suit.