                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


VIRAG, S.R.L., a foreign corporation,            No.   16-15137

              Plaintiff-Appellant,               D.C. No. 3:15-cv-01729-LB

 v.
                                                 MEMORANDUM*
SONY COMPUTER ENTERTAINMENT
AMERICA LLC and SONY COMPUTER
ENTERTAINMENT INC,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Laurel D. Beeler, Magistrate Judge, Presiding

                           Submitted October 18, 2017**
                             San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and MOLLOY,*** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
      VIRAG, S.R.L. appeals the district court’s order granting Sony Computer’s

motion to dismiss VIRAG’s complaint asserting Lanham Act claims under 15

U.S.C. §§ 1114, 1125(a)(1)(A). We have jurisdiction under 15 U.S.C. § 1121(a)

and 28 U.S.C. § 1291.

      Because the Gran Turismo video games contain expressive elements such as

characters, plot, music, and extensive interactions between players and the games’

virtual world, they qualify as expressive works and are entitled to First

Amendment protection. See Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790

(2011); Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1241 (9th Cir. 2013). VIRAG

failed to argue that the Gran Turismo games constitute commercial speech in

district court, and therefore waived this argument.1 Even if we reached this

argument, we would reject it because the games do not merely “propose a

commercial transaction.” Dex Media W., Inc. v. City of Seattle, 696 F.3d 952, 958

(9th Cir. 2012) (quoting Va. Pharmacy Bd. v. Va. Citizens Consumer Council, Inc.,

425 U.S. 748, 762 (1976)).2



      1
       In the district court, VIRAG argued only that Sony’s use of VIRAG’s
trademark resulted in commercial gain., , which is a distinct issue.
      2
         We deny VIRAG’s contested motion for judicial notice of the content of
certain internet articles, because the articles are not “sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).
                                          2
      The test set forth in Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989),

see Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2003), applies

regardless whether the VIRAG trademark has independent cultural significance,

see E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1100 (9th

Cir. 2008), or Sony’s use of the trademark within the video game serves to

communicate a message other than the source of the trademark, see Elec. Arts, 724

F.3d at 1243.

      Applying the Rogers test, we conclude that the First Amendment bars

VIRAG’s Lanham Act claims. Id. at 1242. Sony’s use of the VIRAG trademark

furthers its goal of realism, a legitimate artistic goal, see id. at 1243, and therefore

satisfies the requirement that Sony’s use of the trademark have “above zero”

artistic relevance to the Gran Turismo games. Id. Moreover, Sony’s use of the

VIRAG trademark meets the second requirement of Rogers, because VIRAG does

not allege any “explicit indication, overt claim, or explicit misstatement” that

would cause consumer confusion. Id. at 1245 (internal quotation marks and

citation omitted).

      AFFIRMED.




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