United States Ninth Circuit

The district court's dismissal of retired professional football player-plaintiff's action alleging that defendant violated section 43 of the Lanham Act through the use of his likeness in its Madden NFL series of video games is affirmed, where: 1) because the video games were expressive works, the district court correctly applied the Rogers test for balancing between trademark and similar rights, on the one hand, and First Amendment rights, on the other; 2) under the Rogers test, plaintiff's likeness was artistically relevant to the games and that there were no alleged facts to support the claim that defendants explicitly misled consumers as to plaintiff's involvement with the games; and 3) accordingly, the public interest in free expression outweighed the public interest in avoiding consumer confusion.

Appellate Information

• Decided 07/31/2013
• Published 07/31/2013

Judges

• BYBEE

Court

• United States Ninth Circuit

Counsel