Tuesday, October 26, 2021

Professional Skater Loses Lanham Law Case Against Video Game Companies: Litigation, Mediation and Arbitration

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Frankfurt Kurnit Klein & Selz

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Court dismisses false endorsement claim.  The
Lanham Act prohibits false endorsement, which the court defined as
“unauthorized imitation of distinctive
attributes, where those attributes amount to an unregistered
commercial ‘trademark.’”  But to prove a false
endorsement claim, a plaintiff must also show that defendant’s
use of an image or name is  likely to confuse consumers as to
the plaintiff’s sponsorship or approval of the product. Easy
Day Studios and Reverb Communications argued that Miller’s
claim did not meet the Rogers v. Grimaldi  test for
likelihood of confusion. Under this test, the defendant must show
that their allegedly infringing use is part of an expressive work
protected by the First Amendment, at which point the burden shifts
to the plaintiff to prove either that the use is not artistically
relevant to the underlying work or that the use explicitly
misleads consumers as to the source or content of the work. Video
games are expressive works subject to constitutional protection, so
Miller bore the burden of proof. Miller contended that “a
player can literally have the Miller character skate in his home
skate park” using the customization option for the generic
avatar. However, the court was not convinced by this argument
because having realistic skateboarding environments and character
customization were essential to Skater XL’s purpose:
simulating skateboarding. Miller also contended that he was
contacted by two individuals who recognized his character in the
video game. But the court held that  mere use is insufficient
to maintain a Lanham Act claim without more evidence that the use
misled consumers into believing that Miller’s association with
the game meant he endorsed it. Furthermore, the court did not
believe it was plausible that a generic, customizable character
would persuade consumers that Miller endorsed the video game.

When the game was released, Miller claimed that the generic
character looked identical to him and that he did not authorize the
use of his image or likeness. As a result, he sued Easy Day Studios
and Reverb Communications  (a video game agency) for false
endorsement and false advertising under the Lanham Act; and
violations of common law and statutory right of publicity. The
defendants filed a motion to dismiss for failure to state a
claim. Court dismisses false advertising claim. 
Miller’s false advertising claim also failed. False advertising
under the Lanham Act requires two items: 1) the claim must be
within the zone of interests protected by the Lanham Act, i.e.,
injury to plaintiff’s commercial interest in reputation or
sales; 2) and the injury must be proximately caused by the
defendant’s violation. Here, the court  held that Miller
and Easy Day Studios and Reverb Communications were not competing
in the same market because Miller is a skateboarder, so there was
unlikely to be any competitive injury. Miller also failed to
provide any evidence that he lost endorsement agreements or
suffered economic injuries.

In April of 2019, Professional skateboarder Zachary Miller
entered into a contract with game developer Easy Day Studios to
model various outfits to be applied to a generic avatar in the
video game, Skater XL. Skater XL is a simulation
game where players can play as one of five characters: Tiago Lemos,
Evan Smith, Tom Asta, Brandon Westgate, and a nameless generic
character who is also customizable. The latter character, unlike
the four other characters who are explicitly identified by name and
image, has no identifying characteristics and can be modified
multiple ways (e.g., gender, race, hair color, clothing, and
accessories). Players can then use these characters to skate in
realistic urban environments. A California federal court recently handed a big win to game
publishers in a case involving Lanham Act claims.  Here’s
a summary of what happened.

www.fkks.com Miller v. Easy Day Studios Pty Ltd., No.
20cv02187-LAB-DEB, 2021 WL 4209205 (S.D. Cal. Sep. 16, 2021).

Trump Entertainment V. Lexington POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from United States This alert provides general coverage of its subject area. We
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