LOS ANGELES, CA — It was a battle of titans the Ninth Cirucuit Court of Appeals just couldn’t ignore: strip club and video game developer locked in mortal combat over trademark infringement.On November 6th, the court dismissed a three-year-old lawsuit in which East Los Angeles cabaret The PlayPen claimed Rockstar Games violated its trademark by using the name the Pig Pen for a virtual nudie bar in Grand Theft Auto: San Andreas. The Pig Pen is located in GTA’s fictional city East Los Santos.
PlayPen owner ESS Entertainment 2000 claimed the Pig Pen was patterned so closely after the real-life skin joint that consumers could be confused about which was which. In addition, ESS argued alleged similarities between the two establishments implied an endorsement of the video game by ESS.
To put it bluntly, the court said “hogwash.”
Basing their affirmation of a lower court’s ruling on First Amendment grounds, the appellate panel declared both venues to be “low-brow entertainment” but ruled that was where the similarities ended. No reasonable member of the strip-club-frequenting public would assume the two bars were one and the same, nor would they assume ESS endorsed the video game. Conversely, the judges noted, it was highly unlikely gamers would assume Rockstar had opened a little-known gentlemen’s club in an out-of-the-way place all the way across the country from the game company’s New York, NY, headquarters.
In addition, the judges found odd the notion that the public might assume ESS’s unique strip-club expertise was compromised by the presence of a clothing-optional establishment in a video game.
With regard to ESS’ argument that the virtual strip club materially contributed to GTA’s success because players could spend all their time in the Pig Pen and entirely ignore the rest of the scenery, the court had this to say: “…fans can spend all nine innings of a baseball game at the hot dog stand; that hardly makes Dodger Stadium a butcher’s shop. In other words, the chance to attend a virtual strip club is unambiguously not the main selling point of the game.”
Rockstar admitted GTA designers took inspiration from photographs of The PlayPen, but they said they also incorporated design elements from other cabarets in the Greater Los Angeles area.
