Answer: E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc.
In this recently decided case, The United States Court of Appeals for the Ninth Circuit considered “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.”
In this case, E.S.S. Entertainment 2000 alleged that the virtual “Pig Pen” strip club in Grand Theft Auto: San Andreas infringed its trademark and trade dress associated with it’s Los Angeles-based “Play Pen” Gentlemen’s Club. However, the court sided with Take Two Interactive/Rockstar and found that the game’s content is protected by the First Amendment. The full opinion is certainly worth a read, as it is full of humorous quips:
Both San Andreas and the Play Pen offer a form of low-brow entertainment; besides this general similarity, they have nothing in common. The San Andreas Game is not complementary to the Play Pen; video games and strip clubs do not go together like a horse and carriage or, perish the thought, love and marriage.
Or perhaps the following:
Undeterred, 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.
Overall, I’m satisfied with the court’s logic and hope to see more First Amendment protection for trademarks used in artistic expression.
I agree with the outcome of the case as well. Even assuming that the two names are confusingly similar (PLAY PEN vs. PIG PEN), the video game maker is not in the strip club business, nor anywhere near it! It’s well-known that trademark rights adhere only within the trademark holder’s industry and for similar types of goods/services. The only exception is for famous trademarks, but it’s clear that “PLAY PEN” is not a famous trademark. And even if it were, I’m thinking the first amendment concerns would still trump trademark law.
it would be interesting to see if GTA’s creators paid the due royalties for the graffiti in the game. In my opinion, even the ugliest graffiti is protected by copyright. don’t you think so?
@ale
Was there actual graffiti reproduced in GTA: San Andreas? I’ve never played the game, but I find that pretty interesting.
The strip club should have taken advantage of the similarities. Go to the strip bar featured in GTA4! I’m sure that would have attracted some people. At the very worse, it couldn’t hurt business. It’s free publicity!