Red Cross seeks injunction agains Video Game Industry [IP Bytes #3]

(original image from: videogamenews.com)



The Red Cross has it out for the video game industry. In a letter to Davis and Company attorney Chris Bennet, David Pratt of the Canadian Red Cross urges support for enjoining the future use of "red crosses on white backgrounds" in video games.

Traditionally the video game industry has used this symbol to denote in game icons that can replenish a character's health as well as status bars that indicate how much health is left. The Red Cross says that this is a misuse of their trademark, and that they do not want their organization being associated with video games. In the wake of controversy from such games as Grand Theft Auto or the bloodiness of wartime realistic games like Call of Duty 2, the Red Cross feels that the integrity of their organization is put in jeopardy when their identifying mark is universally associated with restoring health in the video game:

"The fact that the Red Cross is also used in videos which contain strong language and violence is also of concern to us in that they directly conflict with the basic humanitarian principles espoused by the Red Cross movement. The crux of the problem is that the misuse of the Red Cross in video games is not only in contravention of the law, it also encourages others to believe that the emblem of the Red Cross is “public property” and can be freely used by any organization or indeed for commercial purposes."

While the Red Cross understands that they cannot reasonably expect to enjoin prior use of the symbol in video games due to the long industry history of using it, they seek to curb future use in this manner. In their letter, the Red Cross seeks to enforce the exclusivity of their mark through provisions of the Geneva Convention, as well as traditional notions of trademark law. According the 1949 Articles, any country that is a signator to the Geneva Convention must enforce the provision that the Red Cross must be identifiable and unambiguous in its need to have a clear meaning in wartime situations. If this argument prevails, The Red Cross has a clear channel to inducing the distinguishability of their mark globally and can likely press upon other governments to uphold their trademark rights.



From my perspective, the concerns of the Red Cross have two divergent manifestations that need to be considered. First, their argument is weaker for games that simply use the symbol of a cross on a background or health pack to denote a health icon. In games such as Condemned: Criminal Origins (involving a police officer on the trail of a psycho killer in domestic USA) where a red cross on a white background is used to denote a generic first aid kit. If it can be shown that such symbols have become synonymous with the general collequial use of healing, rather than the distinct services of the Red Cross, it may be found that the symbol has suffered the fate of genericide. Second, if the Red Cross can withstand the claims that their mark is in generic use to denote health, I think the Red Cross has a stronger argument for enjoining it's use in realistic wartime games. These games use the mark for its verisimilitude and are trying to identify such health stations as the type that the Red Cross is known for providing.

It will be interesting to follow this case and see how it develops. Also, as I start to learn more and understand the way trademarks work, I am curious to know whether there is a distinction between visual genericide and textual genercide. To me it seems this is a case of visual genericide rather than textual. When I play videogames, I do not associate the health packs that I use to replenish my character with the Red Cross. In fact, the idea never even crossed my mind until I read about their complaint. Perhaps this is exactly what they are trying to avoid: that people in combat will have the same attitude toward their valuable service. Alternatively, the way that health in video games is distributed has changed over the years. Games such as The Chronicles of Riddick: Escape From Butcher Bay use a health distribution system that requires three spikes being inserted into the characters' neck at a designated checkpoint. Other games, such as Halo 2 and Call of Duty 2 (mentioned above) do away completely with health pack, and rely on a system that replenishes health after an alotted time period. Even more realistic is the health system of Grand Theft Auto: San Andreas (also mentioned above) that requires the character to scarf down food at local restaurants (at the risk of obesity if he eats junk food and doesn't exercise). The point is that as the video game industry evolves, they are devising new and creative ways to distribute health. Reliance on red crosses on white backgrounds has ceased to be a standard. Whether that fact militates in favor of the Red Cross or not will be an interesting issue to watch as this saga unfolds.