EA lawsuit - further thoughts

We posted recently about how EA has brought a pre-emptive lawsuit seeking judicial confirmation that it has a constitutional right to depict real-world helicopters in its games.

This lawsuit is another example of the issues involved in depicting real-world brands and objects in video games. We discussed this topic in more detail some time ago: see here.

The EA dispute is interesting because apparently the helicopter manufacturer demanded that EA cease depicting its helicopters in the Battlefield 3 game, and the parties could not reach a resolution. EA then filed its pre-emptive lawsuit on freedom of speech and nominative fair use grounds. (Nominative fair use is a US trade-mark principle that says it's OK to refer to a third-party trade-mark in order to identify that party's products, services or business, so long as you do not suggest an endorsement or affiliation.)

Presumably the helicopter manufacturer takes the position that its choppers are distinctive, that it has trade-mark rights in them, and that any unauthorized depiction of them infringes these rights. The strength of this position is not clear, and EA's lawsuit, if it proceeds, will shed more light on the legality of depicting real-world objects in video games.