Brooks Entertainment, Inc. v. Activision Blizzard, Inc.
3:21-cv-02003
S.D. Cal.Jul 12, 2022Background
- Brooks Entertainment (formed 2002) sued Activision Blizzard and Rockstar, alleging Defendants copied Brooks’ copyrighted game scripts (Save One Bank; Stock Picker) and used a character "Sean Brooks" that infringed owner Shon Brooks’ trademark and likeness; complaint filed Nov. 30, 2021.
- Plaintiff’s counsel sent pre-suit demand letters seeking 10% of Call of Duty gross sales and that the game character be "morphed" into Shon Brooks; Rockstar replied denying involvement and asked for substantiating documents.
- Defendants investigated, served Rule 11 safe-harbor letters, and moved for Rule 11 sanctions after plaintiff did not withdraw; Defendants argued (and submitted evidence showing) no substantial similarity, no evidence of access to copyrighted materials, and that Rockstar had no role in Call of Duty.
- The court reviewed the complaint, the record, and supplemental materials the plaintiff’s counsel later submitted; the court found multiple factual inaccuracies in the complaint and that counsel failed to conduct a reasonable pre-filing inquiry.
- Court held the Lanham Act, copyright, and California §3344 claims were legally and factually baseless, granted Defendants’ Rule 11 motions, dismissed the complaint with prejudice, and ordered Plaintiff’s counsel to reimburse Defendants’ reasonable fees (amount to be determined).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 11 sanctionability of the Complaint | Complaint was well grounded in fact/law after six months of investigation and review of client documents and game materials | Complaint was frivolous: factually false, legally baseless, and filed without reasonable inquiry | Sanctions granted: counsel failed reasonable inquiry; Complaint was baseless and signed in violation of Rule 11 |
| Lanham Act / trademark infringement | Sean Brooks in COD is confusingly similar to Shon Brooks and infringes trademark SHON BROOKS | COD is an expressive work; Sean vs. Shon are dissimilar; Rogers test applies; no likelihood of confusion | Claim legally baseless under Rogers/First Amendment analysis and dismissed |
| Copyright infringement | Brooks owns copyrights and COD copied protected elements (plots, settings, character traits) | No direct evidence of copying; no proof Defendants had access to Brooks’ copyrighted materials; alleged similarities are generic/ideas | Claim dismissed: no evidence of access/substantial similarity of protected expression; similarities were unprotectable ideas or generic elements |
| California right of publicity (Cal. Civ. Code §3344) | COD used Shon Brooks’ name/likeness as main character for commercial benefit | Sean Brooks is distinct (different spelling, appearance, background); use not for advertising or selling plaintiff’s identity | Claim fails: no actionable use of plaintiff’s likeness for commercial advertising; factual allegations false |
Key Cases Cited
- Christian v. Mattel, Inc., 286 F.3d 1118 (9th Cir. 2002) (attorney duties to investigate facts and law before filing under Rule 11)
- Buster v. Greisen, 104 F.3d 1186 (9th Cir. 1997) (frivolous filings are both baseless and made without reasonable inquiry)
- Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531 (9th Cir. 1986) (requirement of adequate legal research prior to filing)
- Truesdell v. S. Cal. Permanente Med. Grp., 293 F.3d 1146 (9th Cir. 2002) (Rule 11 safe-harbor 21-day procedure)
- Greenberg v. Sala, 822 F.2d 882 (9th Cir. 1987) (courts reluctant to sanction for factual errors if reasonable inquiry was conducted)
- Townsend v. Holman Consulting Corp., 929 F.2d 1358 (9th Cir. 1990) (sanctions inquiry focuses on information reasonably available at filing)
- Brown v. Elec. Arts, Inc., 724 F.3d 1235 (9th Cir. 2013) (application of Rogers test to expressive works like video games)
- Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) (Rogers test: trademark claims against expressive works limited unless no artistic relevance or explicitly misleading)
- KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004) (likelihood of confusion is element of Lanham Act claims)
- Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980 (9th Cir. 2017) (copyright infringement requires ownership and copying of protected elements)
- Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994) (idea–expression merger/standard elements not protected by copyright)
- Hugo Neu-Proler Co. v. Local 13 Int'l Longshoremen & Warehouse Union, 238 F.3d 428 (9th Cir. 2000) (attorney's fees may be an appropriate Rule 11 sanction)