Finding in favor of Orrick clients Sony Interactive Entertainment America LLC and Sony Interactive Entertainment Inc., a federal appeals court has concluded that Sony’s “Gran Turismo” video games are protected as expressive works under the First Amendment and therefore not subject to the trademark infringement claims raised by VIRAG SRL, a European flooring company.
In an Oct. 20 ruling, the United States Court of Appeals for the Ninth Circuit considered the appearance of a VIRAG banner in the popular video game’s rendition of the Monza racing track in Italy. Ending a three-year-old trademark infringement suit, the unanimous three-judge panel relied on U.S. Supreme Court and Ninth Circuit precedent to conclude that the Gran Turismo game is expressive speech protected by the First Amendment:
“Because the Gran Turismo video games contain expressive elements such as characters, plot, music, and extensive interactions between players and the games’ virtual world, they qualify as expressive works and are entitled to First Amendment protection.”
The court applied the two-part test set forth by the Second Circuit in Rogers v. Grimaldi to find that the First Amendment bars VIRAG’s trademark claim, concluding that the use of the VIRAG mark both furthers the goal of “realism,” “a legitimate artistic goal,” and did not make any “explicit misstatement” that would cause consumer confusion.
Partner Lisa T. Simpson
led the Orrick team, which included associates Hannah Garden-Monheit
and Briggs M. Wright
and former Orrick associate Ian Fein