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E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc.

United States Court of Appeals for the Ninth Circuit
547 F.3d 1095 (9th Cir. 2008)


Rock Star Videos, Inc. (Rock Star) (defendant) produced the Grand Theft Auto video games. In these video games, Rock Star depicted the streets and businesses of Los Angeles but changed their names. E.S.S. Entertainment 2000, Inc. (ESS) (plaintiff) operated a strip club called the Play Pen Gentlemen’s Club. Rock Star had included a strip club called the Pig Pen in its video games. Rock Star also used photos from other parts of Los Angeles to influence the imagery of the Pig Pen. ESS brought suit and claimed that Rock Star had committed trademark infringement by using Play Pen’s logo and trade dress without ESS’s permission. ESS claimed that this would cause consumer confusion as to whether the strip club in the video game was associated with ESS or whether ESS endorsed it. Rock Star filed a motion for summary judgment and claimed the defense of nominative fair use and First Amendment protections. The district court granted Rock Star’s motion based on the First Amendment but rejected Rock Star’s nominative fair use defense. ESS appealed.

Rule of Law


Holding and Reasoning (O’Scannlain, J.)

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