Although a strong trademark usually favors the plaintiff in infringement actions, in cases involving expressive works subject to First Amendment protection it may actually weigh in favor of the defendant. In Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc., No. 14-cv-02361-RS, 2014 U.S. Dist. LEXIS 165943 (N.D. Cal. Nov. 24, 2014), the plaintiff owned a trademark registration for the “angry monkey” design shown below for wearable patches, which both parties agreed were extremely popular in the military world. Defendant Activision used a visually similar image in its military-simulation video game Call of Duty: Ghosts, which was one of over six hundred virtual “patches” players can use to customize their soldier avatars in the game:
