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Keker & Van Nest Defends Client's Combat Video Game From Trademark Claims


Electronic Arts Inc. on Friday filed a suit asserting that it did not infringe Textron Inc.’s trademark rights by using brand-name helicopters in a military combat video game because its expressive work is protected by the First Amendment and the doctrine of nominative fair use.

EA’s declaratory judgment action in California federal court against Providence, R.I.-based Textron and units Textron Innovations Inc. and Bell Helicopter Textron Inc. claims that its inclusion of Bell-made helicopters in the video game Battlefield 3 did not violate any trademark or trade dress rights.

Battlefield 3 is set in 2014 and allows players to assume command of U.S. soldiers dispatched to stop a terrorist plot involving nuclear weapons near the Iran-Iraq border. Seeking to look more realistic, the game contains images of a diverse array of weapons and vehicles used by soldiers in the modern U.S. military, including Textron’s AH-1Z, UH-1Y and V-22 helicopters, which are identified using their military designations, according to the complaint.

“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,” according to the complaint. “Additionally, under the doctrine of nominative fair use, EA’s work does not infringe defendants’ trademark or trade dress because EA uses defendants’ purported trademarks and trade dress only to identify the helicopters at issue.”

EA is represented by R. James Slaughter and R. Adam Lauridsen of Keker & Van Nest LLP.

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Jamie Slaughter has extensive experience in complex civil and white collar criminal matters. He has successfully represented companies and individuals in breach of contract, fraud, breach of fiduciary duty, trade secret, copyright, trademark and right of publicity cases. He has also represented individuals in matters with the Securities and Exchange Commission and Department of Justice, and numerous national law firms in professional negligence cases.

Adam Lauridsen’s practice focuses on complex commercial litigation, including intellectual property, securities, legal malpractice and contract disputes. He has served as first-chair counsel in a week-long federal civil rights trial, has been an active member of the lead trial team in a multi-week, multi-defendant federal trial and has participated in numerous arbitrations and mediations. Mr. Lauridsen has represented individuals in federal courts, state courts and before the Securities and Exchange Commission. His clients have included large corporations, executives of Fortune 500 companies and high-profile individuals.