EA faces trademark dispute over Battlefield 3 helicopters

By Fred Dutton Published 9 January, 2012

Claims First Amendment protection.

EA is anticipating a trademark dispute over a number of helicopters featured in last year's FPS Battlefield 3.

As detailed by Kotaku, the publisher was contacted last month by lawyers representing Textron, a US conglomerate that owns military hardware outfit Bell Helicopter, asking for three of its helicopters to be removed from the game.

The two parties then failed to reach a private agreement, leading to EA submitting an action to a California federal court on Friday.

EA's filing stated that, "the parties have been unable to resolve their dispute. EA therefore has a reasonable and strong apprehension that it will soon face a trademark and/or trade dress action from Textron."

The publisher then went on to claim First Amendment protection, arguing that the inclusion of Textron's AH-1Z Viper, UH-1Y and V-22 Osprey is covered by "the doctrine of nominative fair use".

"The Bell-manufactured helicopters depicted in Battlefield 3 are just a few of countless creative visual, audio, plot and programming elements that make up EA's expressive work, a first-person military combat simulation," read EA's document.

Textron is yet to respond.

EA recently won a similar lawsuit against Rutgers University regarding the the use of quarterback Ryan Hart's likeness in NCAA Football. The court ruled that EA's First Amendment rights trumped Hart's rights to control his own image.

Picture of Fred.

About Fred Dutton

Fred Dutton is Eurogamer's US news editor, based in Washington DC.

Read more articles from Fred by visiting the Fred Dutton archive page.

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Comments (40) Latest comment 4 months ago

Comments for this article are now closed, but please feel free to continue chatting on the forum!

  • FuzzySnuggleDuck #1 5 months ago

    Fuck it. I say take 'em out and replace them with pterodactyls.

  • Djimm #2 5 months ago

    Replace them with backwards flying dragons.

  • superted1974 #3 5 months ago

    You can see why publishers and developers have got bigger to survive with all this crap flyin around.

  • paketep #4 5 months ago

    EA being hypocrites as usual. If you use a fucking pixel that they believe it's theirs, they sue you to hell, but hey, if they do it, it's fair use!!!

    Fuck EA.

  • HisDudness #5 5 months ago

    Doesn't this happen with gun models in every game? And isn't the solution always to rename it someting a bit different, but you can still model it exactly on the looks of the real thing?

    AL-1X Vyper, UK-1W and V-XXII Albatros There you go EA.

  • arcam #6 5 months ago

    I think EA will win this one. These helicopters are in a ton of other games too.

  • varkdm #7 5 months ago

    Why do Textron even care? Its not as though anyone who plays BF3, is someone whose decision to buy a helicopter gunship may be swayed by how it it is represented in BF3.

  • Ranger101 #8 5 months ago

    Surely this is free advertising (in a very perverse way, mind) for these Military hardware companies?

  • kangarootoo #9 5 months ago

    "You can see why publishers and developers have got bigger to survive with all this crap flyin around"

    This isn't new though, its just that nobody went near it in "the old days". As HisDudness said, guns frequently go under made up names. Whether that means that all instances of properly named guns are the result of licensing deals, I don't know. Cars get this treatment all the time as well.

    @arcam

    Quite so, but are they licensed in those other games? Unless we know that, we can't assume too much. If they are frequently licensed, you would assume the process to be straight forward, so its unclear at this stage why EA weren't able to do so.


    It seems odd in some ways that EA went down this path. Why cause themselves the hassle? Perhaps they felt authenticity was important, started on the assumption they would be able to license the choppers, and now its a bit too late. So its not so much that they genuinely planned to rely on fair use - its just the only avenue that will avoid them having to redo a bunch of models.

  • arcam #10 5 months ago

    Quite so, but are they licensed in those other games?

    I seriously doubt it. Also, every other Battlefield (except 2142, obv) has used real life vehicles so it's not that odd that EA (Dice) chose to do it this way. I guess they figured they'd always been OK before, so why would that change now?
    Edited by arcam at 09/01/12 @ 17:49

  • Collymilad #11 5 months ago

    Fuck them.

    Change them enough, rename them and tell them to get to fuck.

    @EA haters - Do one, it's getting old. If you're going to bitch at anyone, Activision says hi. They've done more to damage the games industry than EA ever did.
    Edited by Collymilad at 09/01/12 @ 17:45

  • Shikasama #12 5 months ago

    People who go mental in articles about piracy stick up for games company who have infringed trademarks.

    Delicious.

  • mcsparronl #13 5 months ago

    im not sure why they have a problem with them being in the game, after playing battlefield, i thought about buying a bell helicopter. Sod em, gyrocopter it is

  • Kyledanutmeg #14 5 months ago

    Well I thought they should of stuck with the Apache's and Blackhawks :D

  • TheEarlOfZinger #15 5 months ago

    @varkdm

    Haha

  • SavageEvil #16 5 months ago

    @Shikasama Yet BF games have been using all these trademarked vehicles for quite some time, all of a sudden it's a problem? I smell a rat, like they didn't know about EA other games? I wonder if Activision got the license to use the Osprey in MW3?

  • riceNpea #17 5 months ago

    stupid names anyway. all helicopters should be referred to as a copter with a rotor overhead forcing lift. or a roflcopter.

  • arcam #18 5 months ago

    @Shikasama Obviously I don't think they've infringed trademarks, that's the point. Google Rockstar vs. the Play Pen, or the Dillinger family vs. EA.

    The The Rogers test" (The Rogers test renders not actionable an artistic work’s use of a trademark that would otherwise violate the Lanham Act (a) unless the use “has no artistic relevance to the underlying work whatsoever” or (b) if it has some artistic relevance, unless it “explicitly misleads as to the source or content of the work.”) is what was used to decide those cases, and I believe it's clear that BF3's use of trademarks would also pass the same test. So I feel pretty confident saying EA will be OK here. But it's certainly a new and interesting problem for video games, that is likely to get bigger as realism increases.

  • DrStrangelove #19 5 months ago

    @varkdm

    I'm not sure if Textron actually cares if their aircraft is in a game. I guess someone just noticed the sweet smell of mmmmmmmmoney.

    It doesn't even have to be Textron themselves, could be just their lawyers. Sueing people is their business after all.

  • Badassbab #20 5 months ago

    The development of all military hardware are funded by taxpayers so if anyone has a right to sue should be the (US) Government on behalf of it's citizens doing the suing.

  • miiiguel #21 5 months ago

    PES should be able to use FIFA's licenses as well. Fair use and all that.

  • Jayaitch #22 5 months ago

    Post deleted at 18:50:52 11-01-2012

  • Pinky_Floyd #23 5 months ago

    Yeah I agree, take out the stupid invincible helicopters that can survive 4 direct hits with a stinger missile in under a minute.

  • TedMoseby #24 5 months ago

    If this was being argued over a space sim that decided to include a model of a TIE Fighter, would anyone be arguing that Lucasfilm shouldn't try and get the model removed?

    Why shouldn't Textron/Bell protect their designs?

    Honestly interested in the legal ins and outs over this, as to just how far things can be used/interpreted.

  • phycus #25 5 months ago

    Obvious isn't it.... replace them with flying camaros.

  • mastablasta #26 5 months ago

    Super Huey never had this problem.

  • TheGuvernor #27 5 months ago

    What a Bell End..

  • butler` #28 5 months ago

    standard investors just trying to cash in

  • rudedudejude #29 5 months ago

    The Havoc is shit.

    That is all.

  • king2001 #30 5 months ago

    ROFLCOPTER

  • tejo.hr #31 5 months ago

    first-person military combat simulation? Is that what it is? A simulation? Then those things really got watered down.

  • Quixz #32 5 months ago

    I think EA will win this.

  • lll_r0sScO_lll #33 5 months ago

    I used to have trademark disputes with EA, then I took an arrow in the knee.

  • TYPICAL_RANDOM #34 5 months ago

    I like cats....

  • orangpelupa #35 5 months ago

    maybe in one of their meeting

    A: Hey bell, i watched my boy flying with you heli in a millitary simulator and it looked awful.

    No more contracts, i close it.

  • Lunatic4ever #36 5 months ago

    if Textron attempts to manipulate BF3...screw them. The game is the best promotion they could ever hope for, so why not support the game?

    idiots

  • Lunatic4ever #37 5 months ago

    @lll_r0sScO_lll

    arrow to the knee jokes don't work here mate

  • EntangledRage #38 5 months ago

    Post deleted at 13:27:25 11-04-2012

  • Spekingur #39 5 months ago

    Does Textron have money problems or something? Are they not making enough money from war and the deaths of real humans?

  • Apostle #40 4 months ago

    @EntangledRage Hmm, conspiracy theory. Helicopters get recent buff..