From Activision Publishing, Inc. v. Warzone.com, LLC, decided last month by Judge Fernando L. Aenlle-Rocha (C.D. Cal.), but just posted on Westlaw (presumably because it has just been appealed); this seems quite correct:
Warzone.com develops and makes available to the public a browser-based game titled Warzone. Warzone is a free-to-play, turn-based strategy game. Players shift numbers, which represent armies, across a map of the world to take control of countries or territories. Warzone.com markets that game as "Better than Hasbro's RISK game." Warzone.com released Warzone in November 2017, and it is available on Warzone.com's internet website and mobile devices. Warzone is not available on video game consoles.
On or about June 25, 2020, Activision filed applications for registration of the trademarks WARZONE and CALL OF DUTY WARZONE. On October 30, 2020, Warzone.com filed applications for registration of the trademark WARZONE. Warzone.com filed a Notice of Opposition to the registration of the Activision marks and the opposition proceeding is currently pending before the USPTO. On November 20, 2020, Warzone.com's counsel sent a cease-and-desist letter to Activision's counsel, demanding that Activision "change the name of its games, stop using Warzone's WARZONE mark, and abandon the trademark applications." Activision and Warzone.com were unable to resolve the dispute, and Warzone.com indicated it intended to seek injunctive relief and damages against Activision….
[W]hen a trademark is included in an expressive work, the protections afforded under trademark laws must also be balanced against broader First Amendment concerns. In circumstances involving an expressive work, a plaintiff with Lanham Act claims must instead overcome the test articulated in Rogers v. Grimaldi (2d Cir. 1989), which was adopted by the Ninth Circuit ….
