Aw, c’mon, Textron. Seriously?
You don’t want Electronic Arts (EA) to use depictions of some of your rotorcraft in the video game Battlefield 3? You’re claiming that EA’s use of images of the AH-1Z, UH-1Y and V-22 infringe on your trademark and dress right?
This issue came to light, not because Bell Helicopter or its parent Textron said anything publicly about it, but when EA filed a lawsuit on January 6, seeking relief from Textron’s demands, a complaint for declaratory relief. EA is asking that the U.S District Court in the Northern District of California convene a jury to throw out this time-wasting dispute.
What EA wants the jury to decide is that “EA’s identification and depiction of the AH-1Z, UH-1Y and V-22 helicopters in the expressive work Battlefield 3 do not infringe Textron’s purported trademarks” or “trade dress” and “[to] enjoin Textron, its agents, attorneys and assigns from asserting any trademark or trade dress claims against EA or any other person in connection with Battlefield 3 or any related product” and “[to] award EA its reasonable attorneys’ fees and costs.”
According to EA’s lawsuit, “The Bell-manufactured helicopters have artistic relevance to EA’s expressive work and Battlefield 3’s use of them does not mislead customers as to the source or content of the work. EA’s identification and depiction of the vehicles in the game are therefore protected by the First Amendment, just as they would be in any book or movie. Additionally, under the doctrine of nominative fair use, EA’s work does not infringe defendants’ trademarks or trade dress because EA uses Defendants’ purported trademarks and trade dress only to identify the helicopters at issue.”
Trademark law is tricky, and many a company has rued the loss of trademark protection because of not fighting to protect its trademarks. Examples include seemingly common words such as escalator, aspirin, kerosene, thermos and even heroin. So this may simply be Textron making sure that efforts to protect its trademarks are well documented and supportable. Or maybe Textron is jealous of the billions of dollars that EA generates without having to cut metal, cure composites and obtain certification and wants some of that action (ie, money).
How Textron is harmed by EA’s depiction of Bell products or what Bell/Textron leadership is thinking is hard to find out. “We cannot comment on ongoing legal matters,” was the official response from a Bell spokeswoman when I asked to talk to someone at the company.
Hello! Textron! Your products are depicted in a lot of software products. For one example, the RealFlight radio control simulator. Will Bell/Textron go after RealFlight and other radio control simulator developers like Trancendental Technologies and Runtime Games, or other video game makers that depict Bell or Cessna aircraft? It turns out that licensing of aircraft depictions is done by RealFlight publisher Hobbico. "We do license all our aircraft," a Hobbico spokeswoman told AIN. "If it's required [by the manufacturer], we do." So maybe there is something to Textron's claims about Electronic Arts.
But, we can't help wondering, is this why helicopter parts cost so much, because Textron lawyers are busily hassling video game makers?
Doesn’t Textron have better endeavors to spend money on, such as designing new products to fight back against the major inroads that Eurocopter and Embraer have made on Bell’s and Cessna’s product lines?