Call of Duty: Warzone publisher Activision says there’s no way the gaming public could confuse its free-to-play battle royale game with a browser-based strategy game also called Warzone – the publisher of which has sought to block Activision from registering Call of Duty: Warzone as a trademark. Activision has now counter-sued, seeking a court declaration that would protect it from such lawsuits in the future.
Activision Publishing, Inc. vs. Warzone.com LLC is a complaint for declaratory relief, which essentially means that Activision is asking the court to find that Warzone.com’s trademark has not been infringed upon by the publication of Call of Duty: Warzone and the registration of the associated trademark by Activision. Such a finding would preempt future lawsuits against the publisher over the use of the term ‘warzone,’ which could prove important: as the complaint points out, there are at least 16 other games with ‘Warzone’ in the title available on the App Store, Google Play Store, and as browser-based games.
Activision argues that the two Warzones in question are so dissimilar that it would be impossible to confuse one for the other – which is a crucial element of proving trademark infringement under US law.
Where Call of Duty: Warzone is a 3D FPS game, the suit explains, Warzone.com is a turn-based strategy game that’s played in a browser and is not available on consoles like the Xbox One or PlayStation 4.
“Because Warzone and [Call of Duty: Warzone] are so different in style, gameplay, and appearance; are marketed very differently; appeal to and are played by different consumers; are not sold in the same channels of trade; and use completely different design marks and logos, a consumer of Defendant’s Warzone would not be likely to believe that [Call of Duty: Warzone] is associated with Defendant or that Defendant’s Warzone is associated with Activision,” the suit states.
Warzone.com LLC disagrees, and in March its attorneys wrote to Activision saying that Call of Duty: Warzone had “caused actual consumer confusion” as well as financial damage, and requested a monetary settlement. Activision’s attorneys say they made a counter-offer, and that this was rejected (they do not provide details on the amounts involved in either the initial settlement demand or the counterproposal).
Activision appears to be concerned enough by Warzone.com LLC’s threats of legal action that it has sought to head things off at the pass by securing a declaration from a US District Court in California that the term ‘Warzone’ is not the exclusive property of Warzone.com, and that Activision’s use of the word hasn’t caused damage to or infringed upon Warzone.com’s trademark. The suit also requests the court to order Warzone.com to cover all attorneys’ fees associated with the case.