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Interesting New Trademark / First Amendment Case from the Ninth Circuit:

E.S.S. Entertainment 2000 v. Rock Star Videos, which rejects a strip club's trademark claim based on the adaptation of its logo inside the Grand Theft Auto: San Andreas video game. Seems to me quite the result, and good reasoning. I'd probably argue for providing an even broader First Amendment defense for the use of trademarks within expressive works (as opposed to on the advertising of the works, including their covers), but given the current state of the law, the decision seems to be very good.

On a less substantive note, here's a particularly amusing paragraph:

ESS also argues that, because players are free to ignore the storyline and spend as much time as they want at the Pig Pen, the Pig Pen can be considered a significant part of the Game, leading to confusion. But fans can spend all nine innings of a baseball game at the hot dog stand; that hardly makes Dodger Stadium a butcher's shop. In other words, the chance to attend a virtual strip club is unambiguously not the main selling point of the Game.

Thanks to How Appealing for the pointer.

Sean O'Hara (mail) (www):
I'm now picturing the judge sitting in his chambers playing the game as research to determine what the main selling point of the game is.
11.5.2008 8:55pm
Chico's Bail Bonds (mail):
"It also seems far-fetched that someone playing San
Andreas would think ESS had provided whatever expertise,
support, or unique strip-club knowledge it possesses to the
production of the game. After all, the Game does not revolve
around running or patronizing a strip club. Whatever one can
do at the Pig Pen seems quite incidental to the overall story
of the Game. A reasonable consumer would not think a company
that owns one strip club in East Los Angeles, which is
not well known to the public at large, also produces a technologically sophisticated video game like San Andreas."

If this is true, how is there any infringement in the first place?
11.5.2008 9:53pm
Audubon (mail):
Eugene-

Thank you for continuing to post interesting legal affairs in the midst of the election furor.
11.5.2008 11:08pm
Soronel Haetir (mail):
What if it were a more famous establishment, one that might in fact have the resources to put together something highly sophisticated? (Ignoring the fact that they probably wouldn't do so just that they could)
11.5.2008 11:25pm
Patent Lawyer:
Interesting case, and goes alongside two other game-related trademark/right of publicity cases:

The Romantics v. Activision, concerning the use of the song "What I Like About You" in Guitar Hero Encore: Rocks the 80s"--E.D.Mich., summary judgment for defendant on First Amendment grounds.

Facenda v. NFL Films--from the Third Circuit, not about an in-game voice, but a voice used in an infomercial-length promotional video for the Madden '07 game. This one went for the Plaintiff on the right of publicity theory, as the promotional video was held to be commercial rather than artistic speech.

Cool stuff for video gaming IP lawyers--like me :)
11.6.2008 12:18am
einhverfr (mail) (www):
Cool!

Of course the last time I was threatened with a trademark lawsuit, I went back, checked my facts (made sure I was doing everything in a proper and legal manner), and promptly laughed at the guy making the threat (he was trying to use trademarks to control publicity about his product, and also secondary markets for additional documentation and I think his brand name would have been a little more generic than "Gel Cel"). Of course it was an idle threat and the guy went away.

I support very limited trademark protections. I think trademarks should be limited to a consumer protection role.
11.6.2008 2:37am
epeeist:
I generally agree with everything, but in appropriate circumstances might slander of title be applicable? Just asking the question, I know there have been posts of those involved with Freecycle here.

On a non-trademark issue not applicable to these facts but related, with product placements and in-game advertisements in video games increasing, at what point do laws and regulations governing advertising apply vis-a-vis television commercials? For example, if a character in a game uses a (named) prescription drug for a (named) condition, is this subject to the legal requirements of pharmaceutical ads if that was merely inserted for purposes of realism? If not normally subject to those requirements, what if the maker of the drug pays for the favorable product placement in a videogame or a movie (or a book, for that matter!).

As an aside, I recently reread the Nero Wolfe mystery "And Be a Villain"; the relatively recent editions contain at the end for interest's sake a copy of the lawyer's letter from the 1940s noting the various things to be careful of to make sure that real people and products weren't alluded to -- in that book, a (fictitious) product was involved in a poisoning.
11.6.2008 3:14am