Video-Game Suit Explores Use of Wrestling Indicia

Irell & Manella partner Steven Marenberg's client list includes a long list of Hollywood heavyweights. Pop songster Stevie Wonder, 'The Lord of the Rings' film director Peter Jackson, The Walt Disney Company, the wizards at Pixar Animation Studios ' the 52-year-old Marenberg has represented them all. He's currently lead litigator in the mammoth copyright-infringement case that Universal Music Group, the world's biggest music company and a longtime Marenberg client, is bringing against MySpace, the social networking site that Universal characterizes as 'a vast virtual warehouse for pirated copies of music videos and songs.' [See the 'Counsel Concerns' column of this issue for a ruling on a motion for defense-attorney disqualification in the Universal/MySpace litigation.]

Still, there are heavyweight intellectual-property matters and then there are battles against real heavyweights. In one of Marenberg's current videogame trademark cases, the slim fivefoot-eight-inch Marenberg is up against a six-foot-three-inch, 300-pound former professional wrestling bruiser known as the Warrior. Until three years ago, Marenberg had never heard of the Warrior and knew nothing of his exploits during the 1990s as one of World Wrestling Entertainment's (WWE) premier stars. 'I'm not a wrestling aficionado,' explains Marenberg, who prefers tennis and soccer.

Marenberg, however, does IP work for THQ Inc., a leading producer of video games, as well as for two other top U.S. video-game industry players, Activision Inc., and Entertainment Arts Inc. So when the Warrior smacked THQ with a lawsuit for allegedly violating his trademarks in WWE-based video  games, Marenberg gamely agreed to handle the company's defense.

The series of games in question ' 'Smackdown vs. Raw' and 'Smackdown! Here Comes the Pain' ' don't actually feature the Warrior's full image. But they do allow players to create their own wrestlers by choosing (in Mr. Potato Head-like fashion) from a menu of various wrestler names, hair and body features, as well as distinct wrestling styles and moves.

Daniel Maynard, a Phoenix IP lawyer who's representing the Warrior, notes that the Warrior name, which is trademarked, is on the list of potential monikers for Smackdown gamers. But the violation gets worse, he says. Players can also fashion a wrestler that wears face paint and tassels on his arms, mimicking the Warrior's unique look, and engages in signature Warrior theatrics and moves. For example, the Warrior had a distinctive way of entering the ring, according to Maynard, which involved running around the ring, and grabbing and shaking the top rope. Plus he had a unique way of finishing off opponents by pressing them over his head and then dropping them behind his back. 'If you were a wrestling fan, you would know it was the Warrior,' insists Maynard.

Marenberg readily admits that the Warrior is on the games' list of potential wrestler names ' and also that some of the body features and moves that players can pick from are similar to the Warrior's. Still, Marenberg points out that Warrior is a fairly generic fighting name, and he contends that even if some of the individual moves or physical features resemble the Warrior, it certainly doesn't add up to trademark infringement. 'Our position is that there are no proprietary rights involved here,' says Marenberg. 

Not that THQ is taking the fight lightly. THQ, based in Calabasas, CA, has more than $1 billion in annual revenues, and the WWE games are its biggest sellers. If the Warrior succeeds in winning damages or an injunction, it could easily cost THQ hundreds of thousands of dollars.

Marenberg joined Irell & Manella in 1981, after graduating from The Law School of The University of Chicago  and finishing a clerkship with federal district court judge James Moran. At Irell, Marenberg handles a mix of litigation, including intellectual-property cases and other commercial matters. Besides the Warrior and MySpace cases, he represented director Peter Jackson in a recently settled dispute with New Line Cinema over profits and royalty sharing for 'The Lord of the Rings.' To date, the three movies have pulled in some $3 billion in worldwide box-office receipts and merchandising revenue.

Marenberg's entr'e to the videogame world came a decade ago, when Lawrence Goldberg, a lawyer he had represented in another matter, wound up taking over as general counsel of Activision, based in Santa Monica, CA. Marenberg serves as Activision's regular outside counsel and recently helped fend off a copyright- infringement suit by a group of rap artists who claimed the company was using their songs in its 'True Crime: Streets of L.A.' video game without a license. (In December 2007, Activision and Vivendi Games announced they would merge in a transaction valued at $19 billion.)

'There was an implied license,' insists Marenberg, who notes that some of the rappers who sued had actually appeared at the 'True Crime' video game launch party and had helped promote it in other venues. 'They were delighted their songs were in the game ' it was good publicity for them,' says Marenberg. Activision ended up winning the case on summary judgment last year, and the U.S. Court of Appeals for the Ninth Circuit upheld the ruling this past summer. Offley v. Activision, 06-56238.

Though his game work may not have quite as much cachet as representing, say, Pixar or Peter Jackson, Marenberg notes that video games frequently rely on licensed music and characters, so his experience with the movie and music industries has translated well. 'It's the same legal principles,' says Marenberg. 'They're all heavily using intellectual property.'

Marenberg's big showdown with the ex-WWE star was expected to come early this year, in oral hearings in federal district court in Phoenix.

Irell & Manella partner Steven Marenberg's client list includes a long list of Hollywood heavyweights. Pop songster Stevie Wonder, 'The Lord of the Rings' film director Peter Jackson, The Walt Disney Company, the wizards at Pixar Animation Studios ' the 52-year-old Marenberg has represented them all. He's currently lead litigator in the mammoth copyright-infringement case that Universal Music Group, the world's biggest music company and a longtime Marenberg client, is bringing against MySpace, the social networking site that Universal characterizes as 'a vast virtual warehouse for pirated copies of music videos and songs.' [See the 'Counsel Concerns' column of this issue for a ruling on a motion for defense-attorney disqualification in the Universal/MySpace litigation.]

Still, there are heavyweight intellectual-property matters and then there are battles against real heavyweights. In one of Marenberg's current videogame trademark cases, the slim fivefoot-eight-inch Marenberg is up against a six-foot-three-inch, 300-pound former professional wrestling bruiser known as the Warrior. Until three years ago, Marenberg had never heard of the Warrior and knew nothing of his exploits during the 1990s as one of World Wrestling Entertainment's (WWE) premier stars. 'I'm not a wrestling aficionado,' explains Marenberg, who prefers tennis and soccer.

Marenberg, however, does IP work for THQ Inc., a leading producer of video games, as well as for two other top U.S. video-game industry players, Activision Inc., and Entertainment Arts Inc. So when the Warrior smacked THQ with a lawsuit for allegedly violating his trademarks in WWE-based video  games, Marenberg gamely agreed to handle the company's defense.

The series of games in question ' 'Smackdown vs. Raw' and 'Smackdown! Here Comes the Pain' ' don't actually feature the Warrior's full image. But they do allow players to create their own wrestlers by choosing (in Mr. Potato Head-like fashion) from a menu of various wrestler names, hair and body features, as well as distinct wrestling styles and moves.

Daniel Maynard, a Phoenix IP lawyer who's representing the Warrior, notes that the Warrior name, which is trademarked, is on the list of potential monikers for Smackdown gamers. But the violation gets worse, he says. Players can also fashion a wrestler that wears face paint and tassels on his arms, mimicking the Warrior's unique look, and engages in signature Warrior theatrics and moves. For example, the Warrior had a distinctive way of entering the ring, according to Maynard, which involved running around the ring, and grabbing and shaking the top rope. Plus he had a unique way of finishing off opponents by pressing them over his head and then dropping them behind his back. 'If you were a wrestling fan, you would know it was the Warrior,' insists Maynard.

Marenberg readily admits that the Warrior is on the games' list of potential wrestler names ' and also that some of the body features and moves that players can pick from are similar to the Warrior's. Still, Marenberg points out that Warrior is a fairly generic fighting name, and he contends that even if some of the individual moves or physical features resemble the Warrior, it certainly doesn't add up to trademark infringement. 'Our position is that there are no proprietary rights involved here,' says Marenberg. 

Not that THQ is taking the fight lightly. THQ, based in Calabasas, CA, has more than $1 billion in annual revenues, and the WWE games are its biggest sellers. If the Warrior succeeds in winning damages or an injunction, it could easily cost THQ hundreds of thousands of dollars.

Marenberg joined Irell & Manella in 1981, after graduating from The Law School of The University of Chicago  and finishing a clerkship with federal district court judge James Moran. At Irell, Marenberg handles a mix of litigation, including intellectual-property cases and other commercial matters. Besides the Warrior and MySpace cases, he represented director Peter Jackson in a recently settled dispute with New Line Cinema over profits and royalty sharing for 'The Lord of the Rings.' To date, the three movies have pulled in some $3 billion in worldwide box-office receipts and merchandising revenue.

Marenberg's entr'e to the videogame world came a decade ago, when Lawrence Goldberg, a lawyer he had represented in another matter, wound up taking over as general counsel of Activision, based in Santa Monica, CA. Marenberg serves as Activision's regular outside counsel and recently helped fend off a copyright- infringement suit by a group of rap artists who claimed the company was using their songs in its 'True Crime: Streets of L.A.' video game without a license. (In December 2007, Activision and Vivendi Games announced they would merge in a transaction valued at $19 billion.)

'There was an implied license,' insists Marenberg, who notes that some of the rappers who sued had actually appeared at the 'True Crime' video game launch party and had helped promote it in other venues. 'They were delighted their songs were in the game ' it was good publicity for them,' says Marenberg. Activision ended up winning the case on summary judgment last year, and the U.S. Court of Appeals for the Ninth Circuit upheld the ruling this past summer. Offley v. Activision, 06-56238.

Though his game work may not have quite as much cachet as representing, say, Pixar or Peter Jackson, Marenberg notes that video games frequently rely on licensed music and characters, so his experience with the movie and music industries has translated well. 'It's the same legal principles,' says Marenberg. 'They're all heavily using intellectual property.'

Marenberg's big showdown with the ex-WWE star was expected to come early this year, in oral hearings in federal district court in Phoenix.