The Red Cross and Video Games

The Red Cross, Red Crescent, and Red Crystal symbols of the International Committee of the Red Cross are protected by the First, Third, and Fourth Geneva Conventions and several protocols thereto.

The Red Cross and Red Crescent emblems are intended to “provide protection for military medical services and relief workers in armed conflicts.”[1]

The United States implements this portion of the Geneva Conventions and Protocols via standalone legislation. The American Red Cross was protected via the Charter Act, passed in 1900 and available, as amended in 2007, at 18 U.S.C. §§ 706 – 706a., which gave it an exclusive right to use a red, Greek cross on a white field but grandfathered prior users, most prominently Johnson & Johnson on its first aid packs.[2]

JJ_aid

J&J actually filed a trademark infringement lawsuit against the American Red Cross when the ARC licensed use of the Red Cross emblem to several first aid and disaster preparedness kit manufacturers; the ARC prevailed on a key motion and the parties settled out all remaining issues.[3] They apparently now co-exist without issue.

arc_aid

Unlike typical trademark laws, the Charter Act does not look at whether the use makes consumer confusion likely: it simply bars any use other than by the American Red Cross (or, after the 2007 amendments, the ICRC and other national societies and their agents), with misdemeanor penalties including imprisonment available as remedies.[4]

The ICRC and its local affiliates seem to have taken a more aggressive approach recently to enforcement of these rights in the context of video games.[5] The Canadian Red Cross defended more aggressive enforcement efforts in a blog post arguing that “[m]isuse of this valued symbol distorts its meaning and its protective value for victims of conflict and the aid workers that assist them.”[6] This is essentially a dilution argument – even if no real-world confusion results, the distinctiveness of the symbol will be reduced, reducing the efficacy of the protection the Geneva symbols provide to relief personnel in the real world.

Games have tended to the Geneva symbols in one of two ways: to suggest “health,” and to refer to the Geneva symbols themselves. The first type of use is quite common; from the earliest first-person shooters, health packs often included red crosses to suggest first aid kits. An example from an early version of the game Doom is shown below.

doom

Other video games take a more realistic approach, trying to simulate war. The use of the Red Cross symbol in this sort of game, to depict the actual Red Cross in the game, is an expressive use and, in key circuit courts, it is analyzed under the Rogers v. Grimaldi test: use of a trademark in an expressive work is only infringing if “(1) the use of the mark has no artistic relevance to the underlying work whatsoever, or (2) it has some artistic relevance, but explicitly misleads as to the source or the content of the work.” In the context of the military game Call of Duty, a California court held that use of a military equipment company’s marks in-game received full protection under the First Amendment. Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc., 74 F.Supp.3d 1134 (N.D. Cal. Nov. 24, 2014). There is a strong argument that, under traditional confusion or dilution analysis, this sort of in-game use would also be permissible.

Because the Red Cross symbol is not protected via traditional trademark laws, third-party use of the Red Cross symbol does not require the same test; neither confusion nor dilution are required, and the rights granted under the Act are ironclad as to junior users.

This “right” presumably is not absolute, no matter what the statute says; it’s almost impossible to envision a court granting relief to the Red Cross against a newspaper that runs a picture of the symbol or that uses the words “Red Cross” in connection with an investigative report, for example. The First Amendment concerns underlying Rogers are, in theory, no less important, though it seems unlikely that a court interpreting the Charter Act would treat them identically. How treaties and the protections of the Bill of Rights interact with each other is way beyond the scope of this little blog post, but the general understanding is that the individual protections of the Bill of Rights are retained without regard to other treaty obligations.[7]

Video game makers have certainly erred on the side of caution. In a March update, the multiplayer space simulator EVE Online updated the icon for a ship module to “comply with the Geneva Conventions,” presumably after a demand from the ICRC or a national affiliate.[8] The company is based in Iceland with operations in the UK and US, and may well have been subject to multiple legal regimes that may be less sensitive to concerns of the sort that impact US First Amendment decisions.

The old symbol: old_dc The new symbol: new_dc

The UK-designed indie game Prison Architect made similar changes, swapping red crosses on ambulances, shown below, for green.

Ambulance

Even the largest studios have been affected; in 2006, Microsoft’s Bungie updated its red-crossed health pack in its flagship Halo shooter for a red “H” symbol.[9]

Halo_packs

It will almost always be simpler for game designers to just push out a minor update to its graphics than to fight the issue in court, but the question is legally interesting and, if a large enough gaming company decides to push back, could make for some very interesting precedent.

 

 

[1] https://www.icrc.org/en/war-and-law/emblem

[2] See A. Barach, “One Cross – Two Cross – Red Cross – Blue Cross When Trademark and Health Care Collide” (Apr. 3, 2012), available at https://www.bradley.com/insights/publications/2012/04/one-cross–two-cross–red-cross–blue-cross-when__.

[3] Johnson & Johnson v. The American National Red Cross et al., Case No. 07-cv-07061 (S.D.N.Y. 2008) in the U.S. District Court for the Southern District of New York.

[4] Providing fines or imprisonment for anyone who “uses the emblem of the Greek red cross on a white ground, or any sign or insignia made or colored in imitation thereof or the words ‘Red Cross’ or ‘Geneva Cross’ or any combination of these words.” 18 U.S.C. § 706.

[5] ; https://www.youtube.com/watch?v=vOAq26xCefY&feature=youtu.be&t=6s provides a good, quick look at other examples.

[6] http://www.redcross.ca/about-us/about-the-canadian-red-cross/red-cross-emblem/it-may-just-be-a-game-to-you-but–it-means-the-world-to-us

[7] Compare Missouri v. Holland, 252 U.S. 416 (1920) with Reid v. Covert, 354 U.S. 1 (1957).

[8] https://community.eveonline.com/news/patch-notes/patch-notes-for-yc119.3-release.

[9] http://kotaku.com/video-games-arent-allowed-to-use-the-red-cross-symbol-1791265328.

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