Brown v. Electronic Arts, Inc., No. 09-56675 (9th Cir. 2013)
Annotate this CaseRetired Hall of Fame football player, James "Jim" Brown, filed suit against EA, alleging that EA violated section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), through the use of Brown's likeness in EA's "Madden NFL" series of football video games. The court rejected the "likelihood of confusion" test and the "alternative means" test, concluding that the only relevant legal framework for balancing the public's right to be free from consumer confusion about Brown's affiliation with "Madden NFL" and EA's First Amendment rights in the context of Brown's section 43(a) claim was the Rogers v. Grimaldi test. Applying the Rogers test, the court concluded that the use of Brown's likeness was artistically relevant to the "Madden NFL" games and that there were no alleged facts to support the claim that EA explicitly mislead consumers as to Brown's involvement with the games. In this case, the public interest in free expression outweighed the public interest in avoiding consumer confusion. Accordingly, the court affirmed the district court's grant of EA's motion to dismiss.
Court Description: Lanham Act. The panel affirmed the district court’s dismissal of retired professional football player Jim’s Brown’s action alleging that Electronic Arts, Inc., violated § 43 of the Lanham Act through the use of his likeness in its Madden NFL series of video games. The panel held that 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. The panel held that neither the “likelihood of confusion” test nor the “alternative means” test was the appropriate framework. Applying the Rogers test, the panel concluded that Brown’s likeness was artistically relevant to the games and that there were no alleged facts to support the claim that Electronic Arts explicitly misled consumers as to Brown’s involvement with the games. Accordingly, the public interest in free expression outweighed the public interest in avoiding consumer confusion.
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