Fair Use on Trial: The Ninth Circuit Test in Roblox v. PlayerAuctions

Roblox’s trademark suit against PlayerAuctions is more than a dispute over virtual currency. It tests how the Ninth Circuit’s nominative fair use doctrine applies in modern online marketplaces and where the line falls between accurate reference and brand exploitation.

The Ninth Circuit’s Framework

The Ninth Circuit’s nominative fair use doctrine rests on three questions.

1. Is the trademarked product or service difficult to identify without using the mark?
2. Has the defendant used only what is reasonably necessary to identify it?
3. Has the defendant avoided implying sponsorship or endorsement?

This framework, introduced in New Kids on the Block v. News America Publishing, Inc. (971 F.2d 302 (9th Cir. 1992)), allows a party to use another’s trademark when the reference is factually necessary, limited, and not suggestive of affiliation. The rule, designed for clarity in communication, now faces new pressure in digital commerce, where every product listing and keyword carries commercial weight.

The Case: Roblox’s Challenge to an Online Marketplace

In Roblox Corp. v. PlayerAuctions, Inc. (N.D. Cal. 2025), Roblox alleges that PlayerAuctions, a long-running platform where users sell game accounts, Robux, and in-game items, built a business on unauthorized use of its marks. Roblox argues that the marketplace’s listings mislead consumers into thinking the site is affiliated with or endorsed by Roblox, while also facilitating transactions that breach Roblox’s terms of service.

PlayerAuctions positions itself as a neutral marketplace connecting players who already own the goods being traded. It insists that its use of the “Roblox” name is nominative fair use: necessary to identify the products, limited to the plain word mark, and accompanied by a visible disclaimer denying affiliation.

Applying the Three-Prong Test

Necessity: PlayerAuctions’ defense begins here. To describe trades in “Roblox accounts” or “Robux,” there is no practical alternative wording. Courts applying New Kids recognize that nominative use is lawful where it conveys information consumers need to identify what is being offered.

Extent: Roblox concentrates its challenge on this prong. The company argues that PlayerAuctions uses the Roblox name excessively, appearing across thousands of listings, navigation menus, and page titles. Such repetition, Roblox contends, transforms reference into branding. Ninth Circuit precedent warns that even necessary references lose protection when they become central marketing devices.

Endorsement: PlayerAuctions points to its disclaimers, which state that it is not endorsed by or affiliated with Roblox. Roblox counters that disclaimers cannot overcome an overall presentation that suggests official connection. The effectiveness of those disclaimers, and the perception of consumers, sits at the heart of the ongoing dispute.

The Court’s Ruling on Injunctive Relief

On May 13, 2025, the Northern District of California denied Roblox’s motion for a preliminary injunction. The court found that Roblox had not shown a likelihood of success on its trademark claims under the Ninth Circuit’s fair use framework. PlayerAuctions, the court concluded, had made a substantial showing that its use of the Roblox mark did not exceed a legitimate referential purpose and did not suggest sponsorship or endorsement.

The order emphasized three points. First, PlayerAuctions used only the trademarked words, not logos or stylized designs. Second, the site’s disclaimers, stating that it was “not endorsed by, directly affiliated with, maintained, authorized, or sponsored by Roblox or its trademark owner,” appeared on each listing page. Third, Roblox had not presented concrete evidence of measurable harm or consumer confusion despite years of coexistence. Without proof of harm, the court declined to impose preliminary relief.

After the ruling, Roblox filed an amended complaint in September 2025, and PlayerAuctions answered later that month. The case remains active, with a scheduling order setting deadlines into 2026.

A Broader Trend

The Roblox dispute mirrors a second 2025 case brought by Take-Two Interactive, publisher of Grand Theft Auto V, against PlayerAuctions in the Central District of California. Take-Two alleged that PlayerAuctions facilitated sales of hacked or modified accounts, in-game currency, and boosting services, calling it trademark infringement and commercialization of unauthorized game activity.

PlayerAuctions denied the allegations and, as in the Roblox case, argued that its references to Grand Theft Auto V were nominative fair use: necessary to identify the products being traded, limited to plain text, and accompanied by clear disclaimers. It also brought counterclaims accusing Take-Two of overreaching enforcement that interfered with lawful online commerce. Together, the Roblox and Take-Two suits reflect a broader trend in which publishers move to control secondary markets while platforms rely on fair use to preserve the ability to describe what they trade.

Practical Guidance for Platforms and Marketplaces

For companies that rely on brand references, Roblox offers a concise roadmap. Use another’s trademark only when it is necessary for accuracy. Keep the reference minimal and factual. Avoid logos, stylized marks, and repetition that could suggest sponsorship. Disclaimers must be prominent and consistent across all listings. Courts will assess how the overall presentation looks to an ordinary user, not just what the text says.

Documentation of intent and consumer understanding can strengthen a defense. Showing that the reference serves clarity rather than promotion helps demonstrate good faith.

The central lesson is that nominative fair use protects description, not marketing. A platform that names another brand to explain its listings can stay within the doctrine if it uses restraint and transparency. The Roblox case confirms that careful adherence to those limits can withstand legal challenge, even against a major publisher.