Public Interest In Free Expression Outweighs The Public Interest In Avoiding Consumer Confusion.

Football player Jim Brown brought an action against the manufacturer of a video game that allegedly used his likeness in several versions of a game, for which he has never been compensated. The Lanham Act [15 U.S.C. § 1125(a) and § 43(a)] provides for a civil cause of action against: “Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any work, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which . . . is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” The district court applied the Rogers test, a test based on Rogers v. Grimaldi (1989) 875 F.2d 994, which states that § 43(a) will not be applied to expressive works unless the use of identifying material has no artistic relevance to the underlying work whatsoever. The Ninth Circuit affirmed, stating: “As expressive works, the [] video games are entitled to the same First Amendment protection as great literature, plays, or books. Brown’s Lanham Act claim is thus subject to the Roger’s test, and we agree with the district court that Brown has failed to allege sufficient facts to make out a plausible claim that survives that test. Brown’s likeness is artistically relevant to the games and there are no alleged facts to support the claim that [defendant] explicitly misled consumers as to Brown’s involvement with the games. The Roger’s test  tells us that, in this case, the public interest in free expression outweighs the public interest in avoiding consumer confusion.” James “Jim” Brown v. Electronic Arts, Inc. (Ninth Cir.; July 31, 2013) (Case No. 09-56675) [107 U.S.P.Q.2D (BNA) 1688; 41 Media L. Rep. 2276].