(CN) – The latest “Call of Duty” video game features a fictional division of the U.S. military called Delta Force that a competing game developer trademarked in 1998, NovaLogic claims in Federal Court.
Calling itself an innovator in the development of first person shooter games, NovaLogic says that it has been developing its Delta Force trademarks for 15 years.
In preparation for the 1998 launch of NovaLogic’s “Delta Force,” the California-based company says it worked with the U.S. Army and Marines, and firms such as Sikorsky and Lockheed Martin.
The logo it registered in 1998 depicts a delta symbol with a vertical lightning rod superimposed onto a dagger, according to the complaint. NovaLogic says it also registered the text “Delta Force.”
Since the 1998 release of “Delta Force,” a military first person shooter game, NovaLogic says there have been at least 10 versions, grossing $150 million in worldwide sales.
The company takes full credit for the name recognition of “Delta Force” in the marketplace.
“There is no unit of the U.S. Army called Delta Force,” according to the federal complaint, filed in Los Angeles. “There is a branch of the Army’s Special Operations known as 1st Special Forces Operational Detachment Delta (‘1st SF-ODD’). The U.S. Army officially denies that any unit called Delta Force exists and does not claim ownership to either the Delta Force name or the logo. Although there is much lore surrounding special operation units, only because of the ‘Delta Force’ series does the general public identify the logo with any ancillary existing military unit.”
Nevertheless, Activision allegedly incorporated a Delta Force division into the latest version of its hit game “Call of Duty.”
In the first 16 days of its November 2011 release, “Call of Duty: Modern Warfare 3” grossed $1 billion.
NovaLogic says Activision’s Delta Force marks are nearly identical to its own.
“The infringing mark’s lightening rod is horizontal rather than vertical and a portion of the delta sign is set behind the dagger blade rather than being superimposed,” according to the complaint.
“In single player mode, 7 of 16 missions are designated Delta Force missions, in which the only avatar available to players is ‘Frost,’ a Delta Force operator,” the complaint states. “In addition, players fight alongside a number of non-player controlled characters. Several of these characters are members of Delta Force.”
“In multiplayer mode, 7 of 16 mission maps have ‘Delta Force’ as one of the two factions that the player can select,” NovaLogic says.
“At the time of this writing, Activision has released 6 additional multiplayer maps with infringing content. Activision plans to release additional content through their ‘Elite Content’ feature,” it added.
“Despite Activision’s irrefutable knowledge of NovaLogic’s superior trademark rights, Activision created knockoff marks that are nearly identical [to] NovaLogic’s design and word marks,” according to the complaint. “Activision then shamelessly inserted these infringing marks throughout its competing first person military adventure video games.
“As if this were not enough, Activision has in-turn licensed the infringing marks to Defendants Voyetra Turtle Beach then shamelessly (‘Turtle Beach’), Microsoft Inc. (‘Microsoft’) and the BradyGAMES division of Penguin Books (‘BradyGAMES’) without NovaLogic’s permission. As a result of Activision’s unauthorized licensing, Turtle Beach and Microsoft have created special editions of their products where the overall look and feel is entirely dominated by use of the infringing marks. In addition, BradyGAMES, a creator of videogame strategy guides and books, has reproduced NovaLogic’s marks in its publications relating to defendants’ game.”
Turtle Beach licensed the infringing mark for a “broad series of limited edition headsets,” the complaint states.
Microsoft allegedly licensed the marks for a limited edition console.
BradyGAMES published “Call of Duty: Modern Warfare 3 Signature Series Strategy Guide,” which includes screenshots of the Activision game that reproduce the infringing marks, according to the lawsuit.
NovaLogic says Activision ignored a cease-and-desist letter it sent in May 2011, and then refused the demands of a second letter sent in December.
“As a result of defendants’ wrongful conduct, NovaLogic has lost millions of dollars, possibly more,” according to the complaint. “If defendants’ infringing practices are not discontinued quickly, it is likely that the damage to NovaLogic will grow exponentially, causing more confusion in the market place, and to the reputation for quality that NovaLogic has worked so hard to establish.”
NovaLogic seeks damages and an injunction for trademark infringement and unfair competition. It is represented by Howard Miller and Graham LippSmith with Girardi Keese.
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