Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc.

Mil-Spec Monkey, Inc. (MSM) (plaintiff) designed and sold “morale patches” to military personnel who wore them in unofficial contexts to express a sense of personal identity. One of MSM’s most popular designs was known as the angry monkey. MSM registered the angry monkey with the United States Patent and Trademark Office as a mark for use in connection with clothing, patches, T-shirts, hats, bags, and tactical gear. Activision Blizzard, Inc. (Activision) (defendant) was a creator of video games, including the popular Call of Duty series. In 2013, Activision released Call of Duty: Ghosts (Ghosts), a multiplayer role-playing game that depicted highly realistic combat scenes featuring a force of U.S. Special Operations personnel called the Ghosts. Ghosts allowed players to customize their avatars in numerous ways that included real-world references to combat-force names, military gear, and other details. One of the customization options was the ability to select from 32 patches that could be placed on the avatar’s uniform, including an angry-monkey patch. The packaging for Ghosts was clear as to its origin and source, bearing the title Call of Duty and identifying its creator as Activision. MSM sued Activision for trademark infringement, alleging that Activision willfully made use of MSM’s angry-monkey mark to cause confusion or deceive consumers as to the source of the design. Activision moved for partial summary judgment, arguing that its use of the angry-monkey design was protected by the First Amendment.