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Virag, S.R.L v Sony Computer Entertainment America LLC et al
Sony Computer Entertainment has succeeded in striking out a claim made against it in California by Italian flooring company, VIRAG.
The owner of VIRAG, Mirco Virag, is a professional racing driver on the European Rally Circuit and his company has sponsored Formula 1’s Autodromo Nazionale Monza track since 2004. The company’s logo has featured prominently on a bridge over the track since 2006. According to VIRAG, this has caused the Rally of Monza has become associated with VIRAG in the minds of the public.
Sony’s popular Gran Turismo franchise included the Monza track in Gran Turismo 5 and Gran Turismo 6. In both games, the famous VIRAG mark used in advertising on the bridge over the track is faithfully reproduced. Sony did not seek VIRAG’s permission before including the VIRAG mark in the games, however, leading to the present litigation. VIRAG sued Sony on 31 July 2014 for, among other things, trade mark infringement.
The Californian court cited the cases of Brown v. Entm’t Merchants Assoc. and Brown v. Elec. Arts, Inc., which held that video games are considered to be ‘expressive works’ under US law that qualify for First Amendment protection under the US constitution. As a result, there would be no infringement provided neither of the following applied:
(1) the use of the trademark or other identifying material has no artistic relevance to the underlying work whatsoever; or
(2) the trademark or other identifying material explicitly misleads as to the source or the content of the work.
With regard to the first limb of the test, the court held that ‘artistic relevance’ in the use of the logo did not mean that the mark had to be a cultural icon. Citing the Electronic Arts case, in which reproducing the facial likeness of the Madden NFL player was found to be artistically relevant, the court found that the use of the VIRAG mark was artistically relevant to simulating the Monza track. The bar was not high—the court only had to find that the artistic relevant was “above zero”.
With regard to the second limb, the court emphasised the use of the mark must “explicitly” mislead. It was not a question of whether consumers were actually confused or not about whether VIRAG might sponsor the Gran Turismo games. There was no evidence that Sony explicitly claimed VIRAG was a sponsor of its games and VIRAG had not even claimed this in its complaint.
Accordingly, the court held that the Gran Turismo games were entitled to protection under the First Amendment as expressive works and the majority of VIRAG’s claim was struck out.
This case demonstrates the extra protection afforded to creators of video games in the United States compared with their European counterparts.
If such a claim for trade mark infringement had been brought by VIRAG in the English courts, for example, it is likely that it would have succeeded without the First Amendment protection. The UK does have some similar protection for freedom of expression under the Human Rights Act 1998, but to date it has not been interpreted this way by the courts in respect of computer games.
Of course, Sony will have incurred legal costs in defending this litigation and it is a battle that it would likely have rather have avoided altogether. Whether in the US or the EU or elsewhere, developers must be careful when including third party marks in their games and should err on the side of caution by obtaining properly drafted licensing agreements for their use.