Activision Wins Rule 11 Sanctions Over Frivolous ‘COD: Infinite Warfare’ Trial
from the clapback dept
It’s always frustrating when you come across an intellectual property lawsuit that is so laughably frivolous. On the other hand, it’s then quite fun when a court gets things so right that the frivolous filer gets a good wrist-slapping for their trouble. In late 2021, Activision Blizzard was sued by a company called Brooks Entertainment, which argued that the video game Call of Duty: Infinite Warfare contained several instances of trademark and copyright infringement.
According to a report by a litigation associate at the law firm Wilson Sonsini Goodrich & Rosati (who tipped Kotaku off), Activision Blizzard was sued in November 2021 by Brooks Entertainment, Inc., a California-based company specializing in film and TV production and other forms of entertainment. However, Kotaku couldn’t find an official website for the company. Brooks Entertainment and its CEO, Shon Brooks, who describes himself as an inventor, claim they hold the trademarks for the financial mobile games Save One Bank and Stock Picker. It should be noted that Kotaku couldn’t verify the existence of these games, either. Regardless, all three of these entities, alongside Activision Blizzard and 2016’s Infinite Warfare, were at the center of the lawsuit.
At issue were several aspects of the game that Brooks claimed infringed the trademark and copyrights of these other games and the Brooks Entertainment company itself. How? Well, there were in-game references to financial institutions and apps within the game that were sort of similar in name to the trademarks mentioned above. In addition, Brooks alleged that there were characters and plotlines that were “ripoffs” of Brooks’ games and, strangely, its CEO.
Brooks Entertainment alleged Activision ripped off intellectual property from both Save One Bank and Stock Picker, as well as the identity of its owner, in Infinite Warfare. To be more specific, the complaint asserted the “main character” for the 2016 first-person shooter, Sean Brooks, was based on the company’s CEO and that all three games had “scripted battle scenes that take place in a high fashion couture shopping center mall.” There were other similarities, too, but these claims were the crux of the complaint.
As Kotaku notes, pretty much everything about these claims is either silly or flat out wrong, and Brooks, therefore, lost the case. For instance, the trademark claims rested on the similarity of the names, but the court pointed out that the COD game is an expressive work. A similarly named character in an artistic expression protected by the First Amendment follows the Rogers Test instead of a similarity test, and nobody is being confused as to the origin of a good just because there is a Sean Brooks character in a COD game.
As for the copyright claims, well…
The similarities alleged in this case—for example, a videogame played “offshore,” use of “exotic locations,” and travelling to other planets, — are so broad and generally applicable to the videogame industry that they could not be protected by copyright, even if Plaintiff had been able to produce evidence of access and similarity. Further, and much more troubling, other allegations are blatantly false. For example, COD is a first-person shooter game, not first- and third-person as alleged,9 and Sean Brooks does not conduct a scripted battle scene in a high fashion couture shopping mall.
Plaintiff’s counsel could have easily verified these facts prior to filing the factually baseless Complaint, just as the Court easily verified them within the first hour and a half of playing the game. Finally, there is no indication that either Defendant ever received the copyrighted materials. In fact, the documents Plaintiff’s counsel relied upon and shared with the Court show that the emails containing the materials were sent only to former Rockstar HR Manager, Sarah Schafer, and never received any response.
By now you’re probably wondering what Rockstar has to do with any of this, given the company has nothing to do with the COD franchise. You may be wondering, “Hey, wait, did Brooks Entertainment sue the wrong company as part of all this?” Well, it’s more complicated than that, involving an employee that may or may not have gone back and forth between being employed by Rockstar and Activision… but yeah, pretty much. Either way, it’s quite fun to see a judge essentially say, “Hey, did you guys even play the game? Because I did and all of this is just wrong.”
As for Brooks’ claim that the game appropriated his “likeness” due to the homophonically similar names, the court had to write these words out, which I somehow imagine was accomplished while rubbing its temples in frustration.
Under the language of Section 3344, Defendants did not use Plaintiff’s “name, voice, signature, photograph, or likeness in any manner.” Cal. Civ. Code § 3344 (emphasis added). Shon Brooks is an African American financial consultant from New Jersey, while (the differently spelled) “Sean Brooks” is a Caucasian, Solar Associated Treaty Organization Marine, from Ireland voiced by an Irish actor.
If you dove into the embedded ruling, you may have noticed by now that this isn’t a ruling simply for the trial, but also one for Rule 11 Sanctions. Those are the ones that make the filer of a bullshit lawsuit, that can’t even get its own facts right, pay out to the defendant for having its time and money wasted. And the result of this needless and confused fight Brooks Entertainment chose to pick with Activision (and others) is that they’ll be paying the defendant instead of the other way around.
And so we now await the parties to submit their opinions on what “reasonable attorneys’ fees and costs” were incurred by Activision from this litigation. Maybe next time Brooks Entertainment should stick to the entertainment stuff, because it’s obviously quite bad at litigation.