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St. Louis Legislation Is Unconstitutional

(This is an archived case summary.)

This case challenged the constitutionality of an ordinance of St.Louis County, which made it unlawful to knowingly sell, rent, make available, or permit the "free play" of violent video games.

The action was brought by various video game companies which alleged that the ordinance improperly restricts free speech. 

St. Louis defended the ordinance on the basis that 1) games do not contain sufficient expression to constitute speech; 2) even if games do constitute speech, they are "obscene" to minors; 3) there are compelling reasons for the Ordinance and it is the least restrictive means available; 4) the games should be treated as content-neutral; and 5) the Ordinance is not vague.

The court didn't buy these arguments and ruled that the Ordinance violated the First Amendment. The court concluded that "in most circumstances, the values protected by the First Amendment are no less applicable when the government seeks to control the flow of information to minors." The court struck down the Ordinance as unconstitutional.

The County argued that since video games require mostly player-controlled action and the story lines are often ignored, games should enjoy a lesser standard of protection. The court rejected this argument, stating that in today's technological age a viewer could also take any action-packed DVD movie like "Charlie's Angels" and skip right to the violent parts.

The County did not have any substantial empirical evidence linking violence in video games to acts of violence committed by minors, or supporting its belief that violent videogames cause psychological harm to minors. The court stated that "where [a] First Amendment right is at stake, the Government must present more than anecdote and supposition."  The County could notsimply surmise that it is serving a compelling state interest because "[s]ociety in general believes that continued exposure to violence can be harmful to children". However, the court made it clear that had such empirical evidence been present, it would have been more inclined to hold the ordinance constitutional.

Interactive Digital Software Association et al. v. St. Louis County, Missouri, et al.
2003, US Ct. of Appeal, 8th Cir.
329 F.3d 954
Summarized by Danielle Park

World Wrestling Federation Not Liable For Illegal Acts Of Its Licensees

A long running dispute between the World Wresting Federation (the "Federation") and the World Wide Fund for Nature(the "Fund") over the use of the initials "WWF," in a logo referred to as the "Scratch" logo, was resolved in 2002 when an injunction was granted against the Federation, preventing the Federation, its officers, agents, subsidiaries, licensees and sub-licensees from directly or indirectly using the initials "WWF" throughout the world, other than in a specified form. The Federation was specifically restrained from using the "Scratch" logo, and the Federation quickly rebranded its wrestling empire as the "WWE."

The Case

This 2003 case from the English Supreme Court of Judicature's Court of Appeal considered the special case of one licensee, THQ, which developed and published videogames based on Federation wrestling characters. THQ's license was granted prior to the injunction. While the company wasn't a party to the 2002 injunction, it had received correspondence from the Federation warning that use of the Scratch logo was forbidden. Accordingly, THQ removed all references to the logo from its packaging promotional material, and existing games where feasible, and did not incorporate the logo into any new games. However, the logo was embedded in the gameplay code for several existing games. THQ argued that, due to the cost and technical difficulties involved in re-programming an existing games, that they should not be required to remove them at the code level. THQ argued that the games were still of significant commercial value and could not simply be pulled from shelves. THQ applied for a declaration that the continued marketing of its games was not in breach of the 2002 injunction, and that THQ would not be in contempt of court for defying the injunction and selling the games. At trial, THQ lost the court found that continued use of the logo by THQ was the same as a breach of the injunction by the Federation, aided and abetted by THQ. THQ appealed the decision.

The Outcome

The appeal was allowed. The injunction imposed obligations on the Federation only, not on THQ. Although the Federation was directly responsible for the acts of its officers, servants and agents, the injunction didn't impose an absolute responsibility on the Federation to be liable for the acts of independent third parties, such as licensees like THQ. The court found that while the Federation was forbidden from authorizing or causing licensees to ignore the injunction, it couldn't be expected to do things outside its powers to prevent use of the logo. The court found that the Federation was required by the injunction to take "all reasonable steps" to prevent licensees from breaching the injunction, but had clearly done so in communicating the 2002 injunction decision to its licensees. THQ did not "aid and abet" the Foundation in breaching the injunction; it was simply an independent party protecting its own commercial interests, which had arisen before the injunction was granted. 

World Wide Fund for Nature (formerly World Wildlife Fund) et al v. World Wrestling Foundation Entertainment Inc. and THQ/Jakks Pacific LLC
[2003] E.W.C.A. Civ. 401

Summary by Dani Lemon

POKEMON EQUALS MONSTER IN MY POCKET?

(This is an archived case summary.)

Morrison alleged that the POKEMON trade-mark caused reverse confusion with its MONSTER IN MY POCKET mark, and applied for summary judgment.  That application was dismissed, and the U.S. Court of Appeal upheld the dismissal.  The court held that the marks were significantly different in sight and sound and that a reasonable consumer in the marketplace would not be confused as to the source of the two products. The court noted that Morrison presented no evidence of actual confusion. In particular, Morrison did not conduct a survey to contest a survey undertaken by Nintendo that demonstrated no likelihood of confusion between the two products.

Morrison Entertainment Group, Inc. v. Nintendo of America, Inc.,
2003 U.S. App. LEXIS 1957

Summary by Chris Metcalfe