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Activision, Microsoft and Turtle Beach sued for use of Delta Force trademark

Activision, Microsoft and Turtle Beach sued for use of Delta Force trademark

Tue 15 May 2012 6:20pm GMT / 2:20pm EDT / 11:20am PDT
Legal

Activision's usage of "The Unit" in Modern Warfare 3 allegedly breaks NovaLogic trademark

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NovaLogic, who has been responsible for the Delta Force series of video games since the mid-90s, has sued Activision for use of the term "Delta Force" in Modern Warfare 3. The suit alleges that since no real "official" group within United States Joint Special Operations Command exists, the term is therefore fictional, and able to be claimed.

This suit specifically means to test the validity of a trademark that NovaLogic has held since 1998. Activision's use and logo display within Modern Warfare is quite close to what NovaLogic has been using in their games for some time, but the argument remains on whether or not a supposed "unit" is real or not.

The traditional belief is that the Government and US Army "officially [deny] that any unit called Delta Force exists and does not claim ownership to either the Delta Force name or the logo."

While "The Delta Force" is technically not the actual name of the group, NovaLogic is basing their arguments on the fact that they believe that Activision could not create a team based off of any "Delta Force." The "Delta Force" in Modern Warfare 3, they argue, is breaching a trademark.

Digging deeper, the argument becomes a bit silly. Activision hired author and former Unit member Thomas 'Dalton Fury' Greer to help out with consulting for the game - a man that will readily acknowledge the validity of Delta by way of his book "Kill Bin Laden." On the cover of the book rests "Delta Force" and the logo that has been brought into question by NovaLogic.

By all accounts, the team works rather autonomously, and wears gear very akin to the kit utilized by members of 1st SFOD-D (also referred to as ACE by the Department of Defense.) This unit, which internally refers to themselves as Delta (among other titles bestowed to them by other areas of the public and the Armed Forces), falls under Joint Special Operations Command, taking on some of the most dangerous work in Afghanistan and abroad.

Essentially, these members of The Unit, much like with DEVGRU (SEAL Team 6) and other Special Mission Units, act in highly specialized, autonomous units that perform incredibly risky operations of high value to the United States. Modern Warfare 3's gameplay for the Delta team members, while overly dramatized, falls in line to a degree of a unit that could potentially be tasked with such missions.

1

NovaLogic, who has worked on gameplay centered on Operation Restore Hope (specifically Operation Gothic Serpent, famously referred to as 'Black Hawk Down'), does acknowledge the Delta Force as a real unit within Delta Force: Black Hawk Down. Gamers are given command of Delta members in-game, in a real world setting, with gear and missions resembling the actual group that was present during the battle. The game specifically assigns gamers to 1st SFOD-D, while retaining the Delta Force association.

The suit specifically targets the trademark held on video game and video game related use. NovaLogic expressly states that the mark is "for use in connection with computer software featuring simulations created through graphics, computer game software, pre-recorded CD-ROM compact discs featuring computer games, hand held units for playing computer games, accessories for hand-held units for playing electronic computer games, namely computer game joysticks, manuals and strategy guides."

NovaLogic also argues that Activision is knowingly dodging their trademark. The complaint argues that Vivendi, who now owns Activision, "previously licensed NovaLogic's marks for its videogame. Yet, 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. Activision then shamelessly inserted these infringing marks throughout its competing first person military adventure video games."

It looks as though Activision could still be in for a bit of a fight, as NovaLogic is making a willful infringement claim that has an attached C&D letter and correspondence attached as exhibits to the complaints. The discussion could become quite interesting thanks to two competing marks at issue.

Looking at the logo used in Modern Warfare 3, it has been changed slightly. To add to the confusion, the logo used on Delta advisor 'Dalton Fury's Kill Bin Laden is the exact same as the logo used by NovaLogic in their Delta Force titles.

At this time, Activision and the other defendants have not responded to the claims, though NovaLogic states that two cease-and-desist letters were ignored by the publisher. NovaLogic is seeking an injunction for trademark infringement and damages.

[via Polygon]

7 Comments

Liam Wong

13 0 0.0
Awesome article; really interesting to read - thanks for sharing! The Delta Force image above brings back some awesome memories. Delta Force 1 was one of the many reasons I got into game art and FPS games. Much love! <3

Posted:2 years ago

#1

Wes Keltner
Founder

6 0 0.0
We can always count on Ben to not only find these interesting stories, but have the knowledge to explain each branch/division. And honestly, I seriously doubt he had to really "read up" on this. Dude is a walking Special Forces encyclopedia. Great article Ben, very well done.

So is Nova seeking money? Or do they want ATVI to take any mention of Delta out of MW3? I'm curious to see how this pans out. Or if anything really happens at all.

Posted:2 years ago

#2

Alex Bunch
Proof Reader

93 105 1.1
It's a sad day when games industry litigation is more exciting than the games themselves. Got to be an mobile game for 'Developer War' on it's way?

Posted:2 years ago

#3

Andrew Ihegbu
Studying Bsc Commercial Music

438 146 0.3
I think it will be interesting to see how this pans out. The US government obviously aren't going to confess to having a Delta Force in any sense and as long as they don't then it does qualify as myth and legend. And myth and legend can be copyrighted.

ATVI can however get out of this suit unscathed if they can prove that Delta Force has be come a standard of war games, war literature etc. If they can prove that enough people have used the term without litigation in the past. They will still have to deal with the artwork issues though, as if that picture is anything to go by they were absolute idiots about stealing someone else's material.

Posted:2 years ago

#4

Rick Lopez
Illustrator, Graphic Designer

1,269 941 0.7
I dont know about the name delta force, its been used in differant forms of media already and widely used as a general term for a fictionel army division or squad. they probably have a case regardless, but thats my feelings on the name.

However the logo is quite similar, and only reinforces Nova logics claim.

Posted:2 years ago

#5

Heinz Schuller
Art Director / Artist

15 22 1.5
One of the burdens of owning a trademark is that, if you don't aggressively go after people who try to profit from it, you lose it. For example that's how Fasa/Microsoft lost the trademark "'Mech" in reference to Battlemechs. It looks like Novalogic is focusing on the use of it's trademark in games which is certainly within their rights.

Posted:2 years ago

#6

Joshua Rose
Executive Producer / Lead Designer

191 80 0.4
Examples of other usage of Delta Force include:
Blackhawk Down
Tom Clancy, Rainbow Six (one of my favorite books ever)
Eric L. Haney, Inside Delta Force: The Story of America's Elite Counterterrorist Unit, Declorate Press, 2002

and several others which I don't feel like hunting down right now.

The official unit designation is 1st Special Forces Operational Detachment - Delta. Really NovaLogic?
"for use in connection with computer software featuring simulations created through graphics, computer game software, pre-recorded CD-ROM compact discs featuring computer games, hand held units for playing computer games, accessories for hand-held units for playing electronic computer games, namely computer game joysticks, manuals and strategy guides."
Activision could just say they used Delta Force as an organization name for an entity within a story. It's not like they use the words DELTA FORCE in every single marketing campaign they've made for the game. the Delta Force trademark for NovaLogic was probably made in regards to the NAME of the game itself. The words have been used MANY times in the past, and continue to be used without any legal action. Rainbow Six was written a LONG time ago, actually in the same year in which NovaLogic acquired the trademark for Delta Force. Did they ever sue Tom Clancy? Blackhawk Down was released in 2001, three years later. Did NovaLogic ever sue them?

This looks to me like a case where they see a long coat tail dragging in the mud and they're scrambling to jump on it while they still can. Modern Warfare 3 came out last year, why are they waiting until now to sue? Keep in mind this comes not long after earnings were reported for two quarters of Modern Warfare 3 sales. Q4 2011 was reported Feb. 9th (roughly three months after MW3 release) and Q1 2012 was reported just last Wednesday May 9th. Both of which showed sales figures increased due to the successful release of Modern Warfare 3 and it's first official DLC multiplayer pack.

After all, why jump the gun immediately on a game until you know just exactly how much you can get out of them by suing?

Posted:2 years ago

#7

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