Ninth Circuit Dismisses Trademark Infringement Claim Against "Grand Theft Auto" Video Games Maker

Holding:

The U.S. Court of Appeals for the Ninth Circuit has dismissed a trademark lawsuit by owners of the East Los Angeles strip club"The PlayPen" against Rockstar's video game depiction in "Grand Theft Auto" of a similar strip club called "The Pig Pen," located in the game's fictional city of East Los Santos. In its complaint, ESS alleged that Rock Star’s use of the PlayPen logo and look without their permission was likely to confuse customers as to whether ESS endorsed or was associated with the virtual strip club. Citing court precedent, the Ninth Circuit held that the First Amendment protected Rockstar from liability. It reasoned that the video game’s similarity in the look and feel to “The Play Pen” has some artistic relevance to Rockstar’s artistic goal, which was to develop a cartoon-style parody of East Los Angeles. The Ninth Circuit added that nothing indicated that the buying public would reasonably have believed that ESS produced the video game or that Rockstar operated a strip club. It is true that a player can enter the virtual strip club in Los Santos, but ESS failed to provide any evidence that the setting is anything but generic. On the basis of the foregoing, the Ninth Circuit affirmed the district court's grant of summary judgment.

Detailed Summary:

The issue in this case is whether a producer of a video game in the “Grand Theft Auto” series has a defense under the First Amendment against a claim of trademark infringement. Opinion, p. 15146.

Rockstar Games, Inc. (“Rockstar”), a wholly owned subsidiary of Take-Two Interactive Software, Inc., manufactures and distributes the Grand Theft Auto series of video games (the “Series”), including Grant Theft Auto: San Andreas (“San Andreas” or the “Game”). The Series is known for an irreverent and sometimes crass brand of humor, gratuitous violence and sex, and overall seediness. Id., pp. 15146-15147.

Consistent with the tone of the…

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