Activision fired back last week in an ongoing legal controversy with Warzone.com, LLC about the usage of the term 'warzone'.

Warzone.com, LLC has argued that they have exclusive rights to the 'warzone' mark, since their strategy game with the name Warzone came out in 2017, before the release of Activision's Call of Duty Warzone game, and they claim that consumers will confuse their mark with Activision's wildly popular Call of Duty: Warzone game. 

Activision filed a complaint for declaratory relief against Warzone.com, LLC on Thursday of last week. According to the complaint, Warzone.com, LLC sent Activision a cease and desist over their usage of the terms 'Warzone' and 'Call of Duty Warzone', and are demanding that Activision pay them proceeds or a royalty based on the value that the term 'warzone' has brought to their game. Activision was not happy about this demand and is asking the courts to rule that Activision has not infringed on Warzone.com, LLC's trademark. 

"[Warzone.com, LLC's] threats of litigation and active efforts to block Activision's trademark registrations have created an actual and live controversy as to the parties' respective rights to use or register trademarks that included the world 'Warzone'," Activision stated in last weeks complaint. "Because Activision's use of the "warzone" title is both protected by the First Amendment and unlikely to cause consumer confusion, Activision is entitled to a declaration that it has not infringed [Warzone.com LLC's] alleged trademark and is entitled to have its pending trademark applications mature to registration."

Activision's defense of their use of 'warzone'

In their complaint, Activision defended themselves on a number of fronts, but their defense most prominently featured two main arguments under trademark law:

1. The two games are very different products, so it is unlikely anyone would confuse the two games
2. The term warzone is common in games, and Warzone.com, LLC has not enforced the warzone trademark adequately to claim it as their own

Let's start by looking at Activision's first defense here, that the games are distinct and unlikely to be confused with one another. One of the key things to know about about U.S. trademark law is that the purpose of trademarks is to provide clarity for consumers. Trademark protections are meant to prevent companies from intentionally confusing consumers by stealing the brand, name, or mark of a direct competitor.

In their complaint, Activision argued that it is unlikely the two games would be confused for each other because the games utilize visually distinct branding and logos, don't run on the same platforms, and are very distinct in genre and gameplay, therefore consumers will not be confused by the similarity in names. This argument, if accepted by the courts, would be a huge mark in favor of Activision in this case.

Activision's second defense has to do with whether or not Warzone.com, LLC has defended their trademark well enough to be given exclusive rights to the mark. In order for a trademark to remain valid, a company has to enforce it in all circumstances, or you lose the right to it. In other words, you can not selectively enforce a trademark, they are an all of nothing deal.

Activision argued that the 'warzone' mark is not exclusively the property of Warzone.com, at the point where a wide variety of games are using it. They pointed to 16 different mobile titles that currently used the word Warzone on Google Play and the App Store in their complaint as evidence that Warzone.com is not adequately defending their mark, so the court should not declare them exclusive rights holder to 'warzone'.

Activision concluded their fact claims section saying,  "The Defendant’s continued threats to seek injunctive relief and monetary damages against Activision, as well as Defendant’s Opposition Proceeding and filing of competing trademark applications for the word “Warzone,” have created a concrete dispute between the parties regarding Activision’s right to use and register the WARZONE and CALL OF DUTY WARZONE trademarks in connection with CODWZ."

Activision is seeking a Declaration of Non-Infringement from the court, saying that Warzone.com, LLC does not possess exclusive rights to the term "Warzone". They are also seeking other forms of relief and the awarding of attorney's fees from the court. You can read the entire lawsuit here.