E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc.
United States Court of Appeals for the Ninth Circuit
547 F.3d 1095 (2008)
Rock Star Videos (defendant) created the Grand Theft Auto games, which depicted a fictionalized version of Los Angeles, including a strip club called the "Pig Pen" modeled partly on the real Play Pen Gentlemen's Club operated by E.S.S. Entertainment (plaintiff), using imagery echoing Play Pen's logo and trade dress along with photos from elsewhere in Los Angeles. E.S.S. sued for trademark infringement, arguing the depiction would confuse consumers about whether the game was affiliated with or endorsed by the real club; Rock Star raised nominative fair use and First Amendment defenses. The district court granted Rock Star summary judgment on First Amendment grounds while rejecting the nominative fair use defense, and E.S.S. appealed.
Whether an artistic work using another's trademark is protected by the First Amendment when the public interest in avoiding consumer confusion outweighs the public interest in free expression.