Virtual Life Versus Real Life

The 9th Circuit recently decided a suit brought by a real life strip club in East Los Angeles against the makers of the video game Grand Theft Auto: San Andreas for trademark infringement, trade dress infringement, and unfair competition over the real life strip club's logo and trade dress (E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc). The defendants claimed two defenses: fair use and First Amendment free speech and won the on the free speech defense.

The facts of the case were fairly simple. Grand Theft Auto designed a series of virtual video games located in different cities. Each of the cities were to represent the "seedy-underbelly" of large cities in the U.S. Here, the defendants conceded that San Andreas was meant to represent East Los Angeles and the game designers actually used photographs and pictures of the real city to protray fictionally in the video game. Defendants also conceded that the plaintiff's real life strip club inspired them to make the their virtual world strip club in the video game which uses a very similar logo. Plaintiff's mark is "PlayPen" while the defendant's mark is "Pig Pen." The court granted summary judgement for the video game maker by first rejecting fair use as inapplicable since the defendant's mark was not identical to the plaintiff's. The court, however, accepted the first amendment defense, using the Mattel test. The Mattel said that the artistic use of a mark is not infringement unless the mark has no artistic relevance or unless the use of the mark is misleading of the source. The court held that artisitic relevance was a fairly easy standard to satisfy for the defendant and that the mark was not misleading. Judge also stated that, "Video games and strip clubs do not go together like a horse and carriage or, perish the thought, love and marriage."

I think that this 9th circuit decision sets a strong precedent for trademark cases involving video games and most importantly the use of trademarks in the recent trend of "virtual worlds." For people who are not familiar to virtual worlds (like myself) or who do not even understand them, this case and the subsequent effects seem insignificant. Why should we care what goes on in video games or what people do in "second life?" Well, we should because virtual worlds is a huge industry for game-makers and gamers. Gamers spend hours a day on video games and in their second lives. Game-makers tailor their designs more and more to represent real-life. In that sense, virtual worlds are a true second life, where the same rules from real-life should apply in the trademark context. My problem with the case is the first amendment defense. By granting judgement for the defendants, the court opened up a pandora's box for video games to use all sorts of trademarks to boost the "realisticness" of their games when in reality they are just trying to attract more customers. How is the translation of a real world use into a virtual world use "artisitic?" Isnt it simply "use?" And how is this different from a film company using a trademark in its movie? Would that film company win based on artistic relevance?

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