H/T Eric Goldman.
Rebellion sued Stardock alleging that Stardock’s game, Sins of a Solar Empire: Rebellion
infringed its registered trademark for a game development company. The court dismissed the complaint under Rogers v. Grimaldi.
Rebellion is a well-known British games company that has
developed more than forty video games for major gaming consoles. REBELLION is registered for, among other
things, “entertainment and amusement machines and apparatus, namely, video
games and electronic games.”
Stardock, reviewers, and players sometimes refer to Sins of a Solar Empire: Rebellion as
simply Rebellion (one can see why from the cover/posters). There was “some evidence” of consumer
confusion: a YouTube user mistakenly referred to Rebellion as the developer of Rebellion.
Rebellion argued that Rogers
didn’t apply because Stardock was a competitor labeling its commercial good
with a confusingly similar mark; Stardock even filed a trademark application
for the mark. Thus, Stardock was using Rebellion solely to identify a source.
Video games are expressive works, and the Sixth Circuit has
adopted Rogers, so that was the
standard. Rogers itself recognized
that titles could acquire secondary meaning and become eligible for trademark
protection, but didn’t ask in its test whether a title can or did function as a
source identifier. Artistic and
commercial elements are intwined in titles, and the commercial nature of
artistic works doesn’t diminish their First Amendment protection. Likewise, the fact that a title “attempts to
attract public attention with stylized components” was irrelevant.
Next, Rebellion argued that Rogers cases must involve defendants who were directly referring to
the plaintiff, but there was no such reference here: Stardock was just using a
suggestive trademark to brand its product, and limiting such expression via
trademark didn’t violate the First Amendment.
Also no! Reference is not
required by either prong of Rogers. Many cases have applied Rogers to uses that didn’t refer to the plaintiffs.
Moreover, Rogers
could be applied on a motion to dismiss.
“Courts are cognizant of vindicating First Amendment protections through
early dispositive motions to avoid chilling speech.” Rebellion argued that the court shouldn’t
make its own conclusions at the pleading stage, especially without the
opportunity to examine the underlying work (which, not for nothing, I think the court
could do, given that the game is incorporated by reference). There’s no reason not to grant a motion to
dismiss “where the undisputed facts conclusively establish an affirmative
defense as a matter of law.”
Now it’s all over but the crying. “Rebellion” had some artistic relevance to
Stardock’s game. Within the game,
players could choose to align with “loyalist” or “rebel” factions in the
context of a civil war. The requisite
level of artistic relevance need only be above zero. Stardock described the game as follows: “The
time of Diplomacy is over. The length of the war and differing opinions on what
should be done to bring the war to an end has led to a splintering of the groups involved. The controlling
powers-that-be have depleted arsenals and seemed to have exhausted all efforts
of diplomacy. Trapped in a stalemate, sub-factions have rebelled and broken off
the main alignments. Rebellion is upon us.”
This was clearly enough to meet the low threshold of relevance. (Although
this was from Stardock’s website, the text was included in the complaint as
screenshots.)
Nor was the title explicitly misleading as to source or
content. Pleading that the title was willfully
misleading wasn’t enough. Even if
members of the public are misled, that’s not actionable without an overt misrepresentation. Under Rogers, “factors that might establish
likelihood of confusion—such as the Defendants' intent—are irrelevant.”
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