Full opinion text
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT MORROW, District Judge. On April 22, 2005, plaintiff E.S.S. Entertainment 2000, Inc. filed this action against defendants Rockstar Games, Inc. and Take-Two Interactive Software, Inc. Plaintiff, which does business as the Play Pen Gentlemen’s Club (the “Play Pen”), operates a club in Los Angeles that provides adult-oriented entertainment. Rockstar Games, which is a wholly-owned subsidiary of Take-Two Interactive, manufactures and distributes a video game known as “Grand Theft Auto: San Andre-as.” Plaintiff alleges that defendants have used the Play Pen’s distinctive logo and trade dress in Grand Theft Auto: San Andreas without its authorization, and created a likelihood of confusion among consumers as to whether plaintiff has endorsed, or is associated with, the video game. Plaintiff asserts four claims: (1) trade dress infringement and unfair competition under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (2) trademark infringement under California Business and Professions Code § 14320; (3) unfair competition under Business and Professions Code §§ 17200 et. seq.; and (4) unfair competition under California common law. Defendants have moved for summary judgment on all claims. I. FACTUAL BACKGROUND A. Background The Play Pen is a strip club located on the eastern edge of downtown Los Angeles at 1109 S. Santa Fe Avenue. The Play Pen’s “logo” consists of the words “the Play Pen” (and the lower- and upper-case letters forming those words) and the words “Totally Nude” displayed in publicly available font, with a silhouette of a nude female dancer inside the stem of the first «p ” Rockstar Games is the publisher of the Grand Theft Auto series of video games (the “Series”), including Grand Theft Auto: San Andreas (“San Andreas” or the “Game”). The Series is known for its signature brand of humor, and consumers expect new games in the Series to contain the same type of irreverent humor as earlier games. Each game in the Series is typically set in a cartoon-style city modeled after a real-world urban center such as New York and Miami. To play San Andreas, or one of the other games in the Series, players manipulate the story’s protagonist and attempt to have him accomplish a series of “missions.” Players must complete the missions to advance the plot and ultimately win the game. While plaintiff does not dispute that a player must complete set missions to “win,” it contends that games in the Series can be played without undertaking the missions. San Andreas is similar to the rest of the Series in style, game play, and tone. By playing San Andreas, a player can experience the Game’s version of West Coast “gangster” culture. The Game features three virtual cities, “Los Santos,” “San Fierro,” and “Las Venturas.” These locations are based on Los Angeles, San Francisco, and Las Vegas. The “Los Santos” section of San Andreas is the Game’s version of Los Angeles. Gangs control the Los Santos streets, random gunfire frequently erupts, and drug dealers and prostitutes are common. Los Santos police officers are corrupt. San Andreas was released to the public in the PlayStation 2 format in October 2004, and in the Xbox and PC formats in June 2005. San Andreas was released to the public prior to the date of plaintiffs March 2005 California service mark registration. Millions of copies of San Andre-as have been sold. B. Los Santos Los Santos mimics the look and feel of actual Los Angeles locations. Like Los Angeles, Los Santos is a hodgepodge of distinct areas, each with its own unique characteristics. Instead of “Hollywood,” “Santa Monica,” “Venice Beach,” and “Compton,” Los Santos contains “Vine-wood,” “Santa Maria,” “Verona Beach,” and “Ganton.” The neighborhoods are populated with cartoon-style liquor stores, ammunition dealers, casinos, pawn shops, tattoo parlors, bars, and strip clubs, among other things. The brand names, business names, and other aspects of the locations have been changed to fit the overall “Los Santos” theme and the Series’ irreverent tone. The neighborhood of “East Los Santos” is the Game’s version of East Los Angeles, or more specifically, the eastern edge of downtown Los Angeles. Strip clubs, taco stands, and warehouse-type architecture are found in this area of downtown Los Angeles. East Los Santos mimics the look and feel of actual Los Angeles locations. One of the businesses located in East Los Santos is a virtual, eartoon-style strip club known as the “Pig Pen.” C. Creation Of Los Santos And The Pig Pen Cartoon-style, animated graphics give San Andreas its particular look. Thousands of virtual, cartoon-style locations are depicted in the game, and it includes a disclaimer stating that the locations depicted are fictional. ' A team of artists in Scotland animated San Andreas. Some of the artists who drew Los Santos visited Los Angeles to take reference photographs for use as inspiration in creating the Game’s animated neighborhoods. The artists took photographs of various Los Angeles businesses, streets, and other locations that appeared to fit the San Andreas theme. The artists who drew the Pig Pen took photographs of the Play Pen. The artists used the photographs of the Pig Pen and various other East Los Angeles locations to design aspects of the Pig Pen. When drawing Los Santos, the artists changed the names, building designs, and overall look and feel of the locations and businesses they referenced to make them fit the virtual, cartoon-style world of San Andreas and the Series’ irreverent tone. According to Nikolas Taylor, the Lead Map Artist for the Los Santos section of San Andreas, he and other artists purposely made these alterations because they did not seek to “re-creat[e] a realistic depiction of Los Angeles; rather, [they] were creating ‘Los Santos,’ a fictional city that lampooned the seedy underbelly of Los Angeles and the people, businesses and places [that] comprise it.” Taylor agreed, however, that he did not choose the word “Pig” because he wanted to parody strip club patrons, or because he found anything humorous about pigs. D. Comparison Between The Pig Pen And The Play Pen The Pig Pen building is a totally different size, color, shape, and structure than the Play Pen building. Furthermore, unlike the Play Pen, the Pig Pen does not have a stone facade, a valet stand, large plants and gold columns around the entrance, or a six foot black iron fence surrounding the parking lot. Although the Pig Pen and the Play Pen both have pole signs, the signs have different color schemes. Moreover, unlike the Play Pen’s pole sign, the Pig Pen’s sign has no trio of nude silhouettes above the logo, and no separate “totally nude” sign below. Pointing to these differences, defendants contend that the Pig Pen building was not modeled after the Play Pen building, but rather after another structure in the same neighborhood as the Play Pen. While plaintiff does not dispute that the Pig Pen building differs from that of the Play Pen in certain respects, it contends that the two clubs have similar awnings and logos. The logo on the pole sign in a corner of the Play Pen parking lot is different from the logo that appears on the awning above the Play Pen door in certain respects. This is because there is no physical master or precise template for the Play Pen logo. How to draw the silhouette of the nude female dancer in the Play Pen logo is left to each artist who draws it, although the final drawing must be acceptable to the Play Pen’s owners. There are several different versions of the silhouette used in the Play Pen logo. In fact, some advertisements and signs for the Play Pen do not contain the silhouettes of the nude females. The Play Pen logo is written in a publicly available font. Defendants contend that some of the letters of the Pig Pen logo are in a different font than they are in the Play Pen logo. Plaintiff disputes this, and contends that the two logos use the same font. E. Features Of Strip Clubs In General Strip clubs other than the Play Pen have round awnings because awnings provide shelter from the weather. Many strip clubs also have parking lots. Many businesses are located on the southwest corner of an intersection, and placing a pole sign in the corner of a strip club parking lot closest to the intersection is not unique. Many strip clubs display silhouettes of nude female dancers on the exterior of the building or in them logo. Displaying silhouettes of nude female dancers outside a strip club lets customers know what to expect inside the club. Many strip clubs also use the phrase “totally nude” outside the club or in their logo to tell customers that their dancers are totally nude. Defendants’ expert conducted an Internet search and found websites for at least six other strip clubs and sex-themed establishments in the United States that use the term “Play Pen” or “Playpen.” The Internet also contains information about “Playpen” suites in a high-end Las Vegas hotel; each suite contains an in-room “stripper’s pole.” In addition, there is information on the Internet regarding a theme night at a Hollywood nightclub known as the “Playpen,” which featured performances by adult film stars. F. Advertising And Relevant Consumer Markets 1. The Play Pen The Play Pen has roughly 30,000 “admissions” per year; on any given day, up to 35 percent of Play Pen admissions come from repeat customers. Plaintiff markets its services in local print advertising (particularly, Spanish-language newspapers) and some small out-of-state publications, on the radio, and on a few billboards in and around the Los Angeles area, most of which do not feature the version of the logo with the nude, female silhouette. Plaintiff uses the word “play” in its “Play Pen,” “Players,” and “Playclubs.net” businesses. The creator of the Play Pen came up with the phrase “Play Pen,” because it suggests a place where men can go to play. 2. The Pig Pen And The San Andreas Game Rockstar Games has advertised San An-dreas via television commercials on national networks and print advertisements in national magazines. The Pig Pen does not appear in any of San Andreas’s advertising or promotional materials. Nor does it appear on the Game’s exterior packaging. The Pig Pen is not visible to consumers until after they purchase the Game, insert it into a computer or other player, and actually play the Game. The Pig Pen is just one of hundreds of locations in Los Santos section of San An-dreas. A player who wishes to visit the Pig Pen may do so; there is a weapon available on the roof of the building. None of San Andreas’s missions specifically directs the player to the Pig Pen, however. It is possible to play San Andreas for many hours and even to win the game without ever seeing the Pig Pen. 3. Relevant Consumer Markets Strip club patrons exercise some degree of care in selecting which club to attend. Video game players are knowledgeable consumers. Strip clubs and video games are not related products. The Play Pen is a public establishment, where food and refreshments are served and live nude dancers perform. Video games such as San Andreas are generally played at home, sitting in front of a screen. Although there may be an overlap in terms of customers, the Play Pen and San Andreas do not directly compete for purchasers. Plaintiff is not now and has never been in the video game business, and has no plans to enter that business. Defendants have never been in the strip club business and have no plans to enter that business. 4. Dr. Carol Scott’s Survey Defendants’ expert, Dr. Carol Scott, conducted a survey of 503 San Andreas players. The players were shown a screen shot of the Pig Pen and asked what, if anything, the image called to mind. Of the 503 players surveyed, sixteen mentioned “the Play Pen,” while twenty-seven said the Pig Pen was a generic strip club. Five thought that the Pig Pen was endorsed by, sponsored by, or affiliated with the Play Pen. Dr. Scott asked survey respondents whether they had been in a strip club or planned to go to a strip club. Of the consumers who answered yes, 4.4 percent thought that the Pig Pen was endorsed by, sponsored by, or affiliated with the Play Pen. II. DISCUSSION A. Legal Standard Governing Motions For Summary Judgment A motion for summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.CivProc. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party’s case. See id. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed.R.CivProc. 56(e). In viewing evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987). The evidence presented by the parties must be admissible. Fed.R.Civ. PROC.56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 56 (2d Cir.1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). B. Plaintiffs First Cause Of Action For Trade Dress Infringement And Unfair Competition Plaintiffs first cause of action asserts a claim for trade dress infringement and unfair competition under § 43(a) of the Lanham Act. Section 43(a) prohibits use of a “word, term, symbol, or device,” or a “false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” 15 U.S.C. § 1125(a); see Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1106 (9th Cir.1992) (“Section 43(a) of the Lanham Act ... prohibits the use of false designations of origin, false descriptions, and false representations in the advertising and sale of goods and services”). “For a number of years after [Section 48(a) ] was enacted, courts construed it narrowly to include only two kinds of wrongs: false advertising and the common-law tort of ‘passing off one’s goods as those of another.” Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery, 150 F.3d 1042, 1046 (9th Cir.1998). Over time, however, “the section has been widely interpreted to create, in essence, a federal law of unfair competition.” Two Pesos, 505 U.S. at 780, 112 S.Ct. 2753 (Stevens, J. concurring); see Kendall-Jackson, 150 F.3d at 1046. There are two bases for liability under section 43(a): “(1) false representations concerning the origin, association, or endorsement of goods or services through the wrongful use of another’s distinctive mark, name, trade dress, or other device (‘false association’), and (2) false representations in advertising concerning the qualities of goods or services (‘false advertising’).” Waits, 978 F.2d at 1108. “A trademark is a word, phrase or symbol that is used to identify a manufacturer or sponsor of a good or the provider of a service.” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 900 (9th Cir.2002) (citing New Kids on the Block v. News Am. Publishing, Inc., 971 F.2d 302, 305 (9th Cir.1992)), cert. denied, 537 U.S. 1171, 123 S.Ct. 993, 154 L.Ed.2d 912 (2003). In contrast, “trade dress involves the total image of a product and ‘may include features such as size, shape, color, color combinations, texture, or graphics.’ ” Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 613 (9th Cir.1989) (quoting Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1506 (9th Cir.1987)). Infringement of an unregistered trademark constitutes unfair competition under the Lanham Act (see Kendall-Jackson, 150 F.3d at 1046 & 1047 n. 7 (9th Cir.1998); Chrysler Corp. v. Vanzant, 44 F.Supp.2d 1062, 1068 (C.D.Cal.1999)), as does trade dress infringement (see Int'l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993)). 1. Whether Defendants’ Use Of Plaintiffs Trade Dress And Trademark Is A Nominative Fair Use Defendants argue that they are entitled to summary judgment because their use of plaintiffs trade dress and trademark qualifies as a nominative fair use. Plaintiff contends the nominative fair use defense does not apply because San Andreas does not use the Play Pen mark or trade dress as a descriptive substitute. a. Fair Use Defenses There are two fair use defenses available in trade dress or trademark infringement cases — classic and nominative. See Walking Mountain, 353 F.3d at 809 (stating that both types of fair use defense are applicable in both trademark and trade dress cases). A defendant’s use is classic fair use “ ‘where [he] has used the plaintiffs mark only to describe his own product, and not at all to describe the plaintiffs product.’ ” Id. (quoting Cairns v. Franklin Mint, 292 F.3d 1139, 1151 (9th Cir.2002) (emphasis original)). Stated differently, the classic fair use defense “applies only to marks that possess both a primary meaning and a secondary meaning — and only when the mark is used in its primary descriptive sense rather than its secondary trademark sense.” Brother Records, Inc. v. Jardine, 318 F.3d 900, 905 (9th Cir.2003) (footnote omitted), cert. denied sub nom. Jardine v. Brother Records, Inc., 540 U.S. 824, 124 S.Ct. 155, 157 L.Ed.2d 45 (2003). See also Cairns, 292 F.3d at 1150 (under the classic fair use defense, “ ‘[a] junior user [of a trademark] is always entitled to use a descriptive term in good faith in its primary, descriptive sense other than as a trademark,’ ” quoting 2 Thomas J. McCarthy, McCarthy On Trademark and Unfair Competition, § 11:45 (4th ed.2001)); Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1142 n. 3 (9th Cir.2002) (“Although descriptive terms generally do not enjoy trademark protection, a descriptive term can be protected provided that it has acquired ‘secondary meaning’ in the minds of consumers, i.e., it has become distinctive of the trademark applicant’s goods in commerce,” quoting Park ‘N Fly v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985)). Thus, for instance, in In re Dual-Deck Video Cassette Recorder Antitrust Litigation, 11 F.3d 1460 (9th Cir.1993), defendant used the descriptive word, “VCR-2” to designate the jack to which a second VCR could be attached. The Ninth Circuit held that this did not infringe plaintiffs trademark for a two-deck videocassette recorder, ‘VCR-2.” See id. at 1467 (“A JVC receiver, labeled JVC on the front, would not be mistaken for a Go-Video product because the videocassette jacks on the back were labelled VCR 1 and VCR 2,’ and reference was made to ‘VCR 2’ in the instruction book and on the remote. No possibility existed that a person would buy the plainly labelled JVC receiver thinking that it was made by Go-Video, because a set of jacks on the back was labelled VCR 2.’... This was fair use as a matter of law. The uses were descriptive, and there is no evidence from which an inference of bad faith could be drawn” (citations omitted)). See also Entrepreneur Media, 279 F.3d at 1143-44 (holding that the owner of Entrepreneur magazine had “the exclusive right to use its trademark in printed publications pertaining to business opportunities,” but did not “have the exclusive right to use the word ‘entrepreneur’ in any mark identifying a printed publication addressing subjects related to entrepreneurship,” and concluding that the name of defendant’s public relations firm, “EntrepreneurPR,” constituted a classic fair use (emphasis original)); Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1066 (9th Cir.1999) (holding that defendant could legitimately use the term “Movie Buff’ to describe a movie devotee, but was barred from using “Mov-ieBuff,” since, without the space, the term was not an English language word and “[was] used to refer to Brookfield’s products and services, rather than to mean ‘motion picture enthusiast’ ”); Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267, 270 (2d Cir.1995) (holding that defendant’s use of the pine tree shape for a Christmas season air freshner qualified as a classic fair use, and did not infringe plaintiffs rights in its pine tree air fresh-ner design or dress). To prevail on a classic fair use defense, a defendant must show: (1) that it has not utilized the term in dispute as a trademark or service mark; (2) that it has used the term fairly and in good faith; and (3) that it has used the term only to describe its own goods or services. See Cairns, 292 F.3d at 1151; see also 15 U.S.C. § 1115(b)(4) (codifying the classic fair use defense). In the Ninth Circuit, “the classic fair use defense is not available if there is a likelihood of customer confusion as to the origin of the product.” Cairns, 292 F.3d at 1151. Thus, the classic fair use defense complements the eight factor likelihood of confusion test set forth in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir.1979). See id. (“The classic fair use analysis, therefore, only complements the likelihood of customer confusion analysis set forth in Sleekcraft ” (emphasis original)). The nominative fair use defense, by contrast, applies where the defendant has “ ‘used the plaintiffs mark to describe the plaintiffs product, even if the defendant’s ultimate goal is to describe his own product’ ” Walking Mountain, 353 F.3d at 809 (quoting Cairns, 292 F.3d at 1151 (emphasis original)). In other words, “ ‘[t]he goal of a nominative use is generally for the ‘purposes of comparison, criticism [or] point of reference.’” Id. (quoting New Kids on the Block, 971 F.2d at 306). See also New Kids on the Block, 971 F.2d at 308 (stating that the nominative fair use defense applies to a “class of cases where the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one”). To prove nominative fair use, a defendant must satisfy three requirements: (1) “the plaintiffs product or service in question must be one not readily identifiable without use of the trademark”; (2) “only so much of the mark or marks may be used as is reasonably necessary to identify the plaintiffs product or service”; and (3) “the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.” Walking Mountain, 353 F.3d at 809 (citing Cairns, 292 F.3d at 1151 (internal citation omitted)). See also New Kids on the Block, 971 F.2d at 308 (“If the defendant’s use of the plaintiffs trademark refers to something other than the plaintiffs product, the traditional fair use inquiry will continue to govern. But, where the defendant uses a trademark to describe plaintiffs product, rather than its own, we hold that a commercial user is entitled to a nominative fair use defense provided he meets the following three requirements”). The nominative fair use test replaces the likelihood of customer confusion analysis set forth in Sleekcraft. See Walking Mountain, 353 F.3d at 810 n. 19 (“The nominative fair use test replaces the traditional [Sleekcraft] analysis”); Cairns, 292 F.3d at 1151 (same). See also Playboy Enterprises, Inc. v. Welles, 279 F.3d 796, 801 (9th Cir.2002) (stating that the three-prong test “better evaluates the likelihood of confusion in nominative use cases”). As the Ninth Circuit explained in Brother Records, however, “the third requirement of the nominative fair use defense—the lack of anything that suggests sponsorship or endorsement—is merely the other side of the likelihood-of-confusion coin.” Brother Records, 318 F.3d at 909 n. 5. “Therefore, whereas [the] plaintiff carries the burden of persuasion in a trademark infringement claim to show likelihood of confusion, the nominative fair use defense shifts to the defendant the burden of proving no likelihood of confusion.” Id. (internal citation omitted). b. Applicability Of The Nominative Fair Use Analysis In This Case Defendants do not assert a classic fair use defense. They argue rather that, to the extent they used plaintiffs trade dress or trademark, it was a nominative fair use. Plaintiff disputes that the defense applies to this case. New Kids on the Block, cited by the parties, offers helpful guidance as to when the nominative fair use defense applies. There, the Ninth Circuit explained the defense as follows: “[I]t is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference, or any other such purpose without using the mark. For example, reference to a large automobile manufacturer based in Michigan would not differentiate among the Big Three; reference to a large Japanese manufacturer of home electronics would narrow the field to a dozen or more companies. Much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademark.... ... [W]e may generalize a class of cases where the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one. Such nominative use of a mark- — where the only word reasonably available to describe a particular thing is pressed into service — lies’ outside the strictures of trademark law: Because it does not implicate the source-identification function that is the purpose of trademark, it does not constitute unfair competition; such use is fair because it does not imply sponsorship or endorsement by the trademark holder.” New Kids on the Block, 971 F.2d at 306-08 (emphasis in original). In New Kids on the Block, two national newspapers used photographs of members of the musical group New Kids on the Block, along with the group’s name, to advertise reader polls regarding the group’s popularity. Id. at 304. The Ninth Circuit held that defendants’ use of the mark was nominative in nature, since the newspapers had used the New Kids trademark to refer to the New Kids themselves, albeit to advertise the newspapers’ survey. Id. at 308. The court employed a three-pronged test to determine whether defendants were entitled to assert a nominative fair use defense. First, it determined that it was impossible to conduct a survey about the New Kids, or even to talk about the group, without using its trademarked name. See id. (“It is no more reasonably possible, however, to refer to the New Kids as an entity than it is to refer to the Chicago Bulls, Volkswagens, or the Boston Marathon without using the trademark. Indeed, how could someone not conversant with the proper names of the individual New Kids talk about the group at all? While plaintiffs trademark certainly deserves protection against copycats and those who falsely claim that the New Kids have endorsed or sponsored them, such protection does not extend to rendering newspaper articles, conversations, polls, and comparative advertising impossible”). Second, the court concluded that the newspapers had referenced the New Kids “only to the extent necessary to identify them as the subject of the polls; they [did] not use the New Kids’ distinctive logo or anything else that [was not] needed to make the announcements intelligible to readers.” Id. Finally, the court held that nothing in the survey suggested sponsorship or endorsement by the New Kids. Id. Indeed, at least one of the newspaper announcements “implie[d] quite the contrary by asking whether the New Kids might be ‘a turn off.’ ” Id. at 308-09. Since all three requirements were met,' the court affirmed summary judgment in favor of the newspapers, notwithstanding the fact that defendants had profited from the survey’s use of the New Kids name. See id. at 309 (“Where, as here, the use does not imply sponsorship or endorsement, the fact that it is carried on for profit and in competition with the trademark holder’s business is beside the point” (citation omitted)). New Kids on the Block involved a trademark infringement claim. In Walking Mountain, the Ninth Circuit extended the nominative fair use defense to trade dress infringement claims. See Walking Mountain, 353 F.3d at 809-10 (“a defendant’s use is nominative where he or she used the plaintiffs dress to describe or identify the plaintiffs product, even if the defendant’s ultimate goal is to describe or identify his or her own product”). In Walking Mountain, the defendant, Thomas For-sythe, produced photographs of Barbie in various absurd and sexualized poses, often juxtaposed with vintage kitchen appliances; Forsythe contended that he was attempting in this manner to critique the objectification of women associated with Barbie. See id. at 796. The Ninth Circuit held Forsythe’s use was nominative, in that his “use of the trade dress or mark [was] grounded in [his] desire to refer to the plaintiffs product as a point of reference for defendant’s own work.” Id. at 810. Stated differently, the Ninth Circuit concluded that “Forsythe used Mattel’s Barbie figure and head in his works to conjure up associations of Mattel, while at the same time to identify his own work, which is a criticism and parody of Barbie.” Id. (citation omitted). The court also held that Forsythe’s use of Barbie’s trade dress satisfied each element of the nominative fair use test. First, his use of the Barbie figure and head was “reasonably necessary in order to conjure up the Barbie product in a photographic medium.” Id. at 810; see id. at 810-11 (explaining that “[i]t would have been extremely difficult for Forsythe to create a photographic parody of Barbie without actually using the doll”). Second, given the photographic medium and For-sythe’s goal of depicting Barbie’s social implications, his use of the Barbie torso and head was both reasonable and necessary. Id. at 811 (noting that “[i]t would be very difficult for him to represent and describe his photographic parodies of Barbie without using the Barbie likeness”). Finally, the court concluded that the third element was satisfied because, although Forsythe advised some galleries that one of his photographs hung in the office of Mattel’s President of Production, “[t]he rest of the materials in the[] promotional packets sent to galleries reduce[d] the likelihood of any consumer confusion as to Mattel’s endorsement of Forsythe’s work.” Id. Moreover, the court noted, “[a]ny reasonable consumer would realize the critical nature of [the] work and its lack of affiliation with Mattel.” Id.; see id. (stating that “[critical works are much less likely to have a perceived affiliation with the original work” (citation omitted)). The Ninth Circuit therefore affirmed the district court’s grant of summary judgment in Forsythe’s favor on Mattel’s trade dress infringement claim. As New Kids on the Block and Walking Mountain show, the nominative fair use analysis is applied where a defendant’s work clearly identifies and intentionally refers to plaintiffs product or service. See Brother Records, Inc., 318 F.3d at 904 (“Following New Kids, we have applied the nominative fair use defense in a number of cases. In most of these cases, the nominative fair use defense, as opposed to the classic fair use defense, clearly applied because the defendant used the plaintiffs mark undeniably to refer to the plaintiffs product, even though the defendant’s ultimate goal was to describe his own product”). See, e.g., Cairns, 292 F.3d 1139, 1152-53, 1155 (holding that defendant’s use of plaintiffs marks — Princess Diana’s name and likeness — to market defendant’s Diana-related memorabilia constituted “a permissible nominative fair use”); Playboy Enterprises, 279 F.3d at 802-05 (holding that a former Playboy model’s use of the words “playboy” and “playmate” in headlines and banner advertisements on her website was a nominative fair use); Downing v. Abercrombie & Fitch, 265 F.3d 994, 1000, 1009 (9th Cir.2001) (applying a nominative fair use analysis where the defendant clothing company used the trademarked names and photographs of the plaintiff surfing champions to market shirts that were copies of those worn by plaintiffs in the photographs); Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 409 (9th Cir.1996) (conducting a nominative fair use analysis where plaintiff, a basketball player who had won an award three years in a row, sued an automobile manufacturer for using his name in a commercial advertising a car that had also won an award three years in a row); WCVB v. Boston Athletic Ass’n, 926 F.2d 42, 44 (1st Cir.1991) (holding that a television station could mention the “Boston Marathon” in its broadcasts); J.K. Harris & Co., LLC v. Kassel, 253 F.Supp.2d 1120, 1125-26 (N.D.Cal.2003) (holding that defendants’ use of plaintiffs trade name to criticize the latter’s tax services in Internet advertising was a nominative fair use). See also SSP Agricultural Equipment, Inc. v. Orchard-Rite Ltd., 592 F.2d 1096, 1102-03 (9th Cir.1979) (holding that the defendant company did not infringe plaintiffs rights in its “TROPIC BREEZE” trademark by using the name in competitive advertising); Volkswagenwerk Aktiengesellschaft v. Church, 411 F.2d 350, 351 (9th Cir.1969) (holding that the defendant car repair shop could use plaintiffs trademark, “Volkswagen,” in a sign stating “Modern Volkswagen Porsche Service”); Smith v. Chanel, Inc., 402 F.2d 562, 563 (9th Cir.1968) (holding that a perfume manufacturer could advertise its “2d Chance” perfume by stating that the product was indistinguishable from “Chanel No. 5” as long as the advertisement “[did] not contain misrepresentations or create a reasonable likelihood that purchasers will be confused as to the source, identity, or sponsorship of the advertiser’s product”). As the Ninth Circuit explained in Playboy Enterprises, courts must employ New Kids ’ three-part inquiry in nominative use cases because “[w]hen a defendant uses a trademark nominally, the trademark will be identical to the plaintiffs mark, at least in terms of the words in question.” Playboy Enterprises, 279 F.3d at 801. Consequently, “application of the Sleekcraft test, which focuses on the similarity of the mark used by the plaintiff and the defendant, would lead to the incorrect conclusion that virtually all nominative uses are confusing.” Id. The evidence presented by defendants establishes that the artist(s) responsible for creating the Pig Pen did not design the virtual strip club to identify or refer specifically to the Play Pen. In his declaration, Nikolas Taylor, the Lead Map Artist for the Los Santos section of San Andreas, states that while he and other artists modeled parts of Los Santos on real places, they “purposely changed the names, building designs, and overall look and feel of the real-world places” to make the places fit the Game’s cartoon-style world. Although Taylor drew inspiration for the Pig Pen from reference photographs he had taken of Los Angeles and of the Play Pen, he asserts that he “purposely twisted, altered, and distorted the look of the Playpen logo until it became a suitable logo for the Pig Pen, a cartoon-style strip club that fit with the rest of ‘East Los Santos’, and was consistent with San Andreas’ style [and] irreverent tone.” Taylor states, for instance, that he designed the exterior of the Pig Pen so that it would look different from the exterior of the Play Pen in several respects; indeed, he states he modeled the Pig Pen building on another location in the neighborhood. Taylor also changed the color of building “to fit the Pig Pen within the overall ‘Los Santos’ look and feel.” “Most obviously, [Taylor] used a different name” for the strip club; Taylor contends he chose the name “Pig Pen” not to make fun of the Play Pen, but so “it would be obvious to players of the Game that this was not a real East Los Angeles strip club, but rather, a parody of an East Los Ange-les strip club.” Although he retained the words “totally nude” and the silhouette of the nude female dancer depicted inside the letter “P,” Taylor asserts he did this because he believed that “having the nude female silhouette and the words ‘totally nude’ would help to communicate the message that the Pig Pen was a strip club where totally nude women danced.” He stated: “I ha[ve] seen lots of similar-looking silhouettes on several other strip clubs, and thought that these generic elements were common elements of these types of places.” Similarly, Taylor testified that his goal in designing the Pig Pen was to “ma[k]e it more follow the theme of the game, ma[k]e it more like part of the game, ma[k]e it more part of Los Santos as a virtual environment” — not to comment on the Play Pen per se. Although the evidence indicates that Taylor was primarily, if not solely, responsible for creating the Pig Pen, the declaration and deposition testimony of Rowan Hajaj, Head of Strategic and Corporate Development at Rockstar Games, also support the conclusion that San Andreas does not utilize the Play Pen trade dress or mark to identify, compare, or refer to plaintiffs product or service. Hajaj asserts that San Andreas “parodies the seedy underbelly of Los Angeles,” and that the Pig Pen is a “virtual, cartoon-style strip club” that “is an extremely minor aspect of San Andreas.” He highlights the fact that it is possible to play and even win the Game without passing by or viewing the Pig Pen, and emphasizes that San Andreas carries an express disclaimer on its exterior packaging and on its in-game title screen, which states: “The content of this videogame is purely fictional and is not intended to represent any actual person, business, or organization.” In sum, defendants’ own evidence demonstrates that they did not “ ‘use[ ] the plaintiffs [trade dress and] mark to describe the plaintiffs product.’ ” Walking Mountain, 353 F.3d at 809 (quoting Cairns, 292 F.3d at 1151). Defendants’ purpose in using plaintiffs trade dress and mark was not specifically to identify, criticize, or refer to the Play Pen, but rather to create a strip club that fit the virtual world of Los Santos, and was consistent with the theme and tone of San Andreas. Compare id. (“ ‘The goal of a nominative use is generally for the ‘purposes of comparison, criticism [or] point of reference,’ ” quoting New Kids on the Block, 971 F.2d at 306). See also 3 Thomas J. McCarthy, McCarthy On Trademark And Unfair Competition, § 23:11 (4th ed.2006) (the nominative fair use test “has been applied to permit parody use of a trademark to denote the target of the parody ” (emphasis added)). Because the Pig Pen’s name and appearance are not identical to the Play Pen’s mark and trade dress, the general “likelihood of confusion” test can be applied, and there is no need to look to the alternative, three-part test articulated in New Kids on the Block. See Playboy Enterprises, 279 F.3d at 801 (explaining that “[w]hen a defendant uses a trademark nominally, the trademark will be identical to the plaintiffs mark, at least in terms of the words in question,” and use of the three-part test is necessary because “application of the Sleekcraft test, which focuses on the similarity of the mark used by the plaintiff and the defendant, would lead to the incorrect conclusion that virtually all nominative uses are confusing”). Moreover, because the Game does not specifically identify the Play Pen as such, the elements of the New Kids test cannot readily be applied. See New Kids on the Block, 971 F.2d at 308 (“[W]e hold that a commercial user is entitled to a nominative fair use defense provided he meets the following three requirements: First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder” (emphasis added and footnote omitted)). See also id. at 308 n. 7 (explaining that under the three-part test, “a soft drink competitor would be entitled to compare its product to Coca-Cola or Coke, but would not be entitled to use Coca-Cola’s distinctive lettering,” citing, inter alia, Volkswagenwerk, 411 F.2d at 352 (“Church did not use Volkswagen’s distinctive lettering style or color scheme, nor did he display the encircled VW’ emblem”)). Defendants argue that “[t]he fact ... the reference here is used to conjure the image of something broader than Plaintiffs mark does not affect the analysis” because “[t]he nominative fair use defense is available ‘even if the defendant’s ultimate goal is to describe his. own product.’ ” In support, they cite Walking Mountain, where “the Ninth Circuit held that the use of images of the torso and head of a ‘Barbie’ doll was a nominative fair use, even though the work was intended to comment upon ‘the social implications of Barbie, including issues of sexuality and body image.’ ” Defendants also cite Mattel, Inc. v. MCA Records, Inc., 28 F.Supp.2d 1120, 1141-42 (C.D.Cal.1998), aff'd. on other grounds, 296 F.3d 894 (9th Cir.2002), Clark v. America Online Inc., No. CV-98-5650 CAS (CWX), 2000 WL 33535712, *3-6 (C.D.Cal. Nov.30, 2000), and Wham-O, Inc. v. Paramount Pictures Corp., 286 F.Supp.2d 1254, 1264 (N.D.Cal. 2003) as authority supporting their view. Defendants are correct that the nominative fair use defense covers use of another’s trademark or trade dress even if the goal is ultimately to describe or promote defendant’s product. See Walking Mountain, 353 F.3d at 809 (stating that “a defendant’s use of a plaintiffs mark is nominative when he or she “ ‘used the plaintiffs mark to describe the plaintiffs product, even if the defendant’s ultimate goal is to describe his own product,’ ” ” quoting Cairns, 292 F.3d at 1151 (emphasis original)). In Walking Mountain and all other cases cited by defendants, however, the alleged infringer’s work clearly identified or referenced plaintiffs product or service, even though defendant’s ultimate goal in using the trademark or trade dress was to describe or promote his or her product. See id. at 810 (“Forsythe’s use of the Barbie trade dress is nominative.' Forsythe used Mattel’s Barbie figure and head in his works to conjure up associations of Mattel, while at the same time to identify his own work, which is a criticism and parody of Barbie. Where use of the trade dress or mark is grounded in the defendant’s desire to refer to the plaintiff’s product as a point of reference for defendant’s own work, a use is nominative” (citation omitted and emphasis added)). See also Wham-O, Inc., 286 F.Supp.2d at 1263 (finding that defendants’ use of the yellow “Slip ‘N Slide” in a film qualified as a nominative use because “[njominative use is the use of a mark to identify or to refer to the mark-holder’s product.... [D]efendants use plaintiffs mark to identify a product not otherwise readily identifiable. Other verbal formulas (e.g., ‘water slide’ or ‘lubricated plastic sheet’) do not capture or identify the toy with adequate specificity, and trademark law does not compel individuals to ‘use absurd turns of phrase’ simply to avoid trademark liability. In the film, defendants intend to identify the slide as a specific product; to do so requires the use of the product’s name ” (citations and footnote omitted; emphasis added)); Clark, 2000 WL 33535712 at *5 (“[I]t is obvious from the ‘context ... and surrounding circumstances’ of defendant AOL’s use of the service marked name ‘Dick Clark’ [that the use] is descriptive of Dick Clark, the television personality. In addition to making reference to ‘tunfing] into Dick Clark,’ the Mailer also refers to ‘danc[ing] to the Beatles’ and ‘cruis[ing] in a Thunderbird,’ each of which are symbols of the 1950s and 1960s era that the Mailer is designed to evoke. None of these symbols refers to an Internet service; as evocations of a historical period, the Beatles and Thunderbird names, as well as plaintiffs’ ‘Dick Clark’ name, refer only to themselves. Thus, this is a case ‘where the defendant uses a trademark [‘Dick Clark’] to describe the plaintiffs product [Dick Clark, the historical figure], rather than its own, ’ and the New Kids three-pronged inquiry is appropriate” (citations and footnote omitted; emphasis added)); Mattel, Inc. v. MCA Records, Inc., 28 F.Supp.2d at 1141 (stating that the Barbie Girl song “refers to the doll and the values it has come to represent,” and “[b]y describing the doll’s ‘life in plastic’ and the various ways young consumers play with the doll (‘you can brush my hair, undress me everywhere’), the band Aqua is not speaking specifically about its own product, but rather is commenting on and parodying Mattel’s ” (emphasis added)); Here, the evidence presented demonstrates that defendants’ intention in creating the Play Pen was not to identify plaintiffs service, but only to describe their own product. The Game clearly reflects this intention. Based on the evidence in the record, the court concludes that defendants are not entitled to assert a nominative fair use defense. Their motion for summary judgment on this basis is therefore denied. 2. Whether Defendants’ Use Of Plaintiffs Trade Dress And Trademark Is Protected Under The First Amendment Citing MCA Records, 296 F.3d 894, defendants next argue that they are entitled to summary judgment because the First Amendment protects their use of plaintiffs trade dress and trademark. While plaintiff does not dispute that a First Amendment balancing test applies to this case, it argues that defendants have failed to satisfy the requirements of that test. a. Applicability Of The First Amendment Defense In This Case In MCA Records, the Ninth Circuit held that music companies’ use of the “Barbie” trademark in a song parodying the doll was entitled to First Amendment protection, and thus not actionable under the Lanham Act. See MCA Records, 296 F.3d at 900 (“The First Amendment may offer little protection for a competitor who labels its commercial good with a confusingly similar mark, but ‘[tjrademark rights do not entitle the owner to quash an unauthorized use of the mark by another who is communicating ideas or expressing points of view,’ ” quoting L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 29 (1st Cir.1987)). In so holding, the Ninth Circuit adopted the balancing test established by the Second Circuit in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir.1989) for assessing use of a trademark in a literary title. See MCA Records, 296 F.3d at 902 (“We agree with the Second Circuit’s analysis and adopt the Rogers standard as our own”). The Rogers balancing test requires that courts construe the Lanham Act “ ‘to apply to artistic works only where the public interest in avoiding consumer confusion ouhveighs the public interest in free expression.’ ” Walking Mountain, 353 F.3d at 807 (quoting Rogers, 875 F.2d at 999 (emphasis original)). A literary title falls outside the reach of the Lanham Act if it (1) has some artistic relevance and (2) does not explicitly mislead as to the source or content of the work. See MCA Records, 296 F.3d at 902 (“[LJiterary titles do not violate the Lanham Act ‘unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work,’ ”) quoting Rogers, 875 F.2d at 999. The Ninth Circuit in MCA Records found that the Barbie Girl song easily satisfied both requirements, and therefore did not infringe Mattel’s trademark. See id. Despite the fact that the alleged infringement and unfair competition do not involve the title of their work, defendants argue that the Rogers balancing test applies. As defendants acknowledge, the Ninth Circuit has not definitively determined whether the Rogers test should be applied to “non-titular” uses of trade dress and trademarks. See Walking Mountain, 353 F.3d at 808. In Walking Mountain, the Ninth Circuit commented that a photographer’s use of Barbie’s head and overall appearance in his works “presumably would present First Amendment concerns similar to those that made us reluctant to apply the Lanham Act as a bar to the artistic uses of Mattel’s Barbie trademark in both MCA and this case.” Id. The court did not decide whether the Rogers test applied, however, as it found that the case could be decided using the nominative fair use framework. See id. at 808 (“But we need not decide how the MCAJRogers First Amendment balancing might apply to Forsythe’s use of the Barbie trade dress because we find, on a narrower ground, that it qualifies as nominative fair use”). The court’s order denying defendants’ motion to dismiss expressed doubt regarding application of the Rogers test because Walking Mountain “suggested that applying the Rogers First Amendment balancing test to ‘non-titular’ uses of trademarks and trade dress infringement claims might be inappropriate, at least when a nominative fair use defense is also available.” See id. at 808 n. 14 (“More importantly, if we were to apply the Rogers balancing test, we would have to grapple with First Amendment issues. By instead employing the nominative fair use test — which, incidentally works well in a case like this — we are following the time-honored tradition of avoiding constitutional questions where narrower grounds are available” (citations omitted)). Even in Walking Mountain, however, the Ninth Circuit stated that “[w]ere the nominative fair use test not available and so attractive to this claim, we very well m[ight] have had to apply Rogers.” 7dat809n. 17. Other courts that have considered the issue have extended the Rogers First Amendment balancing test to all expressive uses of a trademark or trade dress in artistic works, whether titular or not. See Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Group, 886 F.2d 490, 495 (2d Cir.1989) (“We believe that the overall balancing approach of Rogers and its emphasis on construing the Lanham Act ‘narrowly’ when First Amendment values are involved are both relevant in this case [assessing whether the appearance of a book’s cover is confusing similar to the trademark elements of the cover of another work]. That is to say, in deciding the reach of the Lanham Act in any case where an expressive work is alleged to infringe a trademark, it is appropriate to weigh the public interest in free expression against the public interest in avoiding consumer confusion. And just as in Rogers, where we said that the expressive element of titles requires more protection than the labeling of ordinary commercial products, so here the expressive element of parodies requires more protection than the labeling of ordinary commercial products. Indeed, we have said, in the context of alleged copyright infringement, that a parody is entitled ‘at least’ to conjure up the original and can do more. Thus, we hold that “the Rogers balancing approach is generally applicable to Lanham Act claims against works of artistic expression, a category that includes parody” ”); 2 Thomas J. McCarthy, McCarthy On Trademark And Unfair Competition, § 10:22 (4th ed. 2006) (“The courts have expanded the Rogers balancing approach to encompass all ‘works of artistic expression’ ”). See, e.g., ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 920, 937 (6th Cir.2003) (applying the Rogers test in a case where an artist used the registered mark, “Tiger Woods,” in marketing materials that accompanied prints of a painting of the Masters of Augusta golf tournament, although the trademarked words did not appear on the face of the prints or in the title of painting); Yankee Publ’g Inc. v. News Am. Publ’g Inc., 809 F.Supp. 267, 276-78 (S.D.N.Y.1992) (finding that defendant’s use of certain elements of the cover design of the Old Farmer’s Almanac to “make[ ] a joking reference to the Almanac, as part of a socio-economic commentary,” was “entitled to the protections explained by the Court of Appeals in Rogers v. Grimaldi and Cliffs Notes ”); Ocean Bio-Chem, Inc. v. Turner Network Television, Inc., 741 F.Supp. 1546, 1552-53 (S.D.Fla.1990) (holding, in a case where the owner of the trademark “Star Brite” sued the producers of a fictional television movie that portrayed a fictional company called “Starbrite Batteries” in a bad light, that the film was “entitled to the full extent of protection afforded by the first amendment” and therefore “the Lanham Act must be construed narrowly,” citing Cliffs Notes, 886 F.2d at 494-95). Defendants’ work is a highly complex video game. It features three virtual cities, each of which contains hundreds of interactive locations created by animated graphics. The Game also incorporates a narrative, and offers an array of musical soundtracks. San Andreas clearly qualifies as an “artistic work” entitled to First Amendment protection. See Video Software Dealers Ass’n v. Schwarzenegger, 401 F.Supp.2d 1034, 1044 (N.D.Cal.2005) (stating that video games, “even though mere entertainment, are nonetheless protected by the First Amendment”). See also Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954, 957 (8th Cir.2003) (“The record in this case includes scripts and story boards showing the storyline, character development, and dialogue of representative video games, as well as excerpts from four video games submitted by the County. If the first amendment is versatile enough to ‘shield [the] painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll,’ we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection. The mere fact that they appear in a novel medium is of no legal consequence. Our review of the record convinces us that these ‘violent’ video games contain stories, imagery, ‘age-old themes of literature,’ and messages, ‘even an “ideology,” just as books and movies do.’ Indeed, we find it telling that the County seeks to restrict access to these video games precisely because their content purportedly affects the thought or behavior of those who play them” (citations omitted)); Video Software Dealers Ass’n v. Maleng, 325 F.Supp.2d 1180, 1184-85 (W.D.Wash.2004) (“The early generations of video games may have lacked the requisite expressive element, being little more than electronic board games or computerized races. The games at issue in this litigation, however, frequently involve intricate, if obnoxious, story lines, detailed artwork, original scores, and a complex narrative which evolves as the player makes choices and gains experience. All of the games provided to the 'Court for review are expressive and qualify as speech for purposes of the First Amendment. In fact, it is the nature and effect of the message being communicated by these video games which prompted the state to act in this sphere. As noted by the Eighth Circuit: ‘Whether we believe the advent of violent video games adds anything of value to society is irrelevant; guided by the [F]irst [A]mendment, we are obliged to recognize that ‘they are as much entitled to the protection of free speech as the best of literature.’ The Court finds that the games at issue are expressive and qualify for the protections of the First Amendment” (citations omitted)). As the court has found, and as ESS itself argues, defendants did not incorporate plaintiffs trade dress or trademark into the Game to identify the Play Pen. Rather, the undisputed evidence shows that defendants used elements of plaintiffs trade dress and mark to create a cartoon-style strip club that fit the virtual world of East Los Santos, the Game’s imaginary version of East Los Angeles, and that conveyed the Series’ irreverent humor. Because defendants’ use of plaintiffs trade dress and trademark are “part of a communicative message and not a source identifier, the First Amendment is implicated in opposition to the trademark right,” and the nominative fair use defense is unavailable. Yankee Publ’g Inc., 809 F.Supp. at 276. The weight of authority holds that in these circumstances, the Rogers test must be applied to strike the proper balance between “the public interest in free expression [and] the public interest in avoiding consumer confusion.” Cliffs Notes, 886 F.2d at 494 (citations omitted); Yankee Publ’g Inc., 809 F.Supp. at 276 (“Thus, where the unauthorized use of a trademark is for expressive purposes of comedy, parody, allusion, criticism, news reporting, and commentary, the law requires a balancing of the rights of the trademark owner against the interests of free speech” (citations and footnote omitted)). Cf. Walking Mountain, 353 F.3d at 809 n. 17 (“Were the nominative fair use test not available and so attractive to this claim, we very well may have had to apply Rogers ”). The court therefore turns to the individual elements of the Rogers test, b. Whether The Pig Pen Has Artistic Relevance To The Game To prevail on a First Amendment defense, defendants must first show that the use of plaintiffs trade dress and trademark “surpasses the minimum threshold of artistic relevance to the [work’s] content.” Rogers, 875 F.2d at 999; MCA Records, 296 F.3d at 902. Plaintiff argues that defendants have not met this requirement. Specifically, plaintiff contends that while defendants may be entitled, under the First Amendment, to depict “such landmark structures as the Watts Towers and the Los Angeles Convention Center for Los Santos, and the Golden Gate Bridge and the Transmerica Pyramid for San Fiero (their virtual version of San Francisco),” defendants’ use of the Play Pen trade dress and mark does not qualify for protection because the Play Pen logo and other features of its business premises have not “achieved that sort of iconic stature.” Plaintiff also assert that “[w]hile the copying of the architectural style of the Play Pen building might be relevant to defendants’ claimed purpose of achieving a realistic portrayal of the area, their copying of plaintiffs work mark, logo, and trade is not.” The content of San Andreas is undisputed. San Andreas is a video game that allows players to step into the shoes of Carl Johnson or “CJ,” a former gang member, and experience the Game’s version of West Coast “gangster” culture. As CJ, players can visit locations in three cities — Los Santos, San Fierro, and Las Venturas; t