Category — Trademark Cases

Last month WeeWorld asked a judge to dismiss its WeeMee/Mii suit without prejudice (meaning they could re-institute the case at a later date) while seeking relief in the UK before resuming any action in the U.S.

Nintendo objected requesting:

1. dismissal of the suit with prejudice (meaning WeeWorld would not be able to re-institute the case at a later date); and
2. recovery of its legal fees incurred on the matter to date - estimated at around $400,000.

According to an open letter from WeeWorld’s CEO, Celia Francis:

The court has ruled in our favor and while we have been asked to pay a small part of Nintendo’s legal fees, the case was dismissed “without prejudice.”

Sources: Open Letter from WeeWorld

Categories: Trademark Cases

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In February, Activision launched a new lawsuit against The Ant Commandos (TAC), Reverb Communications and three former Red Octane executives/employees: former executive producer John Tam, brand manager Corey Fong and hardware group member Jamie Yang. These former executives founded a new company with TAC - Loadstone Entertainment.

Activision has settled with John Tam and Corey Fong. The two have consented to a permanent injunction restraining the two from:

• distributing a demo created by TAM incorporating elements of Guitar Hero II;
• using or disclosing any Activision trade secrets;
• taking steps to develop drum, guitar or synthesizer-based games for the next year;
• “working on” a guitar controller for the XBox 360 version of Guitar Hero II for six months after release; and
• competing against an undisclosed list of peripheral devices for six months after Activision commercially releases them.

The two were also ordered to return all materials relating to Activision’s proprietary information.

As far as I’m aware, no settlement has thus far been reached with Jamie Yang, Reverb or TAC.

Dale’s Comment [written April 26, 2007]: On a personal note, I was one of the lucky one’s to pick up Guitar Hero II for the Xbox 360 on launch day. The local Best Buy had about 100 of them on the morning of the launch. As I understand it, they sold out within hours and, to the date of this writing (owing partially to extreme demand and problems with some versions of the initially released guitar peripheral), I still can’t find them for sale anywhere in Toronto. I would like to purchase a second guitar peripheral. I’m having a blast with this game. As one of the commentators in a recent Joystiq Podcast pointed out, my fingers ache and want to stop playing long before the rest of me does!

Sources: GameSpot | Gamasutra | GameIndustry.biz | 1Up.com | CVG | Kotaku

Categories: Controller Cases, Copyright Cases, Employment Law Cases, Injunctions, Misc. Contract Cases, Non-Compete Cases, Settlements, Trade Secret Cases, Trademark Cases, Unfair Business Practice Casses

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According to GameSpot, last November UK-based WeeWorld filed suit alleging Nintendo’s Mii Avatar system infringed its similar WeeMee avatar system.

WeeWorld’s system allows users to create cartoon-like avatars for use with Skype, AIM, Windows Live Messegner and other instant messaging programs. The Nintendo Wii allows users to create Nintendo Mii avatars for use with the Nintendo Wii’s gaming system both on and offline.

Recently, WeeWorld asked the judge to dismiss the suit without prejudice (meaning they could re-institute the case at a later date) citing an intent to seek relief in the UK before resuming any action in the U.S.

Arguing that its Mii system does not infringe upon WeeWorld’s WeeMee trademarks because there is no possibility of confusion, Nintendo has filed an objection to WeeWorld’s dismissal request, seeking both:

1. dismissal of the suit with prejudice (meaning WeeWorld would not be able to re-institute the case at a later date); and
2. recovery of its legal fees incurred on the matter to date - estimated at around $400,000.

Sources: GameSpot | GameStooge | Kotaku | GamePro.com | Qj.net | Open Letter from WeeWorld

Categories: Trademark Cases

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Midway Games is being sued by William L. Crawford III, a Los Angeles County screenwriter, over its Psi-Ops: The Mindgate Conspiracy sci-fi stealth-action game. Crawford claims the premise, plot and characters were stolen from a screenplay he wrote in 1998 - also called Psi-Ops.

Crawford claims that Midway should have known about his screenplay and its premise because:

• he had set up websites with concept art;
• he attended the 2001 E3 to promote it.
• his company, Mindshadow Entertainment, had received media coverage for a possible  Psi-Ops movie project.
• he had registered “Psi-Ops” with the U.S. Copyright Office six years prior to Midway’s registration.

Crawford seeks an accounting and share of revenue made from “Psi-Ops” sales in an amount no less than $1.5 million.

Dale’s Comment: On a personal note, immediately following its release I purchased this game for the original Xbox. It was unplayable. Like several games of its era, it made me nausious within five minutes of firing it up. Too bad. It looked like a fun game.

Sources: GameSpot | gameindustry.biz | SoftPedia | Yahoo! Games | Kotaku | IGN | 1Up.com

Categories: Copyright Cases, Royalty Disputes, Trademark Cases

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Case Management Summary (March 27, 2007)
Text of Blizzard’s/Vivendi’s Answer & Counterclaim (Feb 16, 2007)
Text of MDY’s (Donnelly’s) Complaint (Oct 25, 2006)

Michael Donnelly created a ‘bot’ program called WowGlider (since renamed to simply “Glider” in response to Blizzard’s trademark complaints) that allows players of the wildly popular World of Warcraft (”WOW”) MMORPG to automate their game play and keep their character “playing” 24/7.

Using this bot the player can continue to level up and harvest gold 24/7 without actually having to play the game - an activity widely considered to be cheating. The use of such “bots” circumvent Blizzard’s security/anti-cheating measures and are prohibited by WOW’s EULA and terms of use.

In the fall of 2006 Blizzard (and its parent Vivendi) demanded Donnelly cease selling the bot. In response, On October 25, 2006 Donnelly’s company MDY filed a complaint in the U.S. District Court of Arizona seeking a Declaratory Judgment that it is not infringing any rights, copyright or otherwise owned by Blizzard and Vivendi.

CONTINUE READING →

Categories: Antitrust/Competition Cases, Bots, Cheating, Copyright Cases, DMCA-TPM Cases, Gold Farming, Hacking, Tortious Interference, Trademark Cases, Unfair Business Practice Casses

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In a new Guitar Hero related dispute, Activision (Guitar Hero publisher RedOctane’s parent company), has filed a fresh lawsuit against guitar peripheral maker The Ant Commando (TAC), Red Octane’s PR firm Reverb Communications and three former Red Octane executives/employees: former executive producer John Tam, brand manager Corey Fong and hardware group member Jamie Yang. The former executives founded a new company with TAC - Loadstone Entertainment.

The complaint alleges:

“copyright infringement, trademark infringement, misappropriating trade secrets and confidential information, breach of contract, interference with contractual relations, and more. “

GameSpot is reporting that Activision has already obtained a temporary restraining order against the defendants restraining them from:

• distributing a demo created by TAM incorporating elements of Guitar Hero II;
• using or disclosing any Activision trade secrets, including: music licensing contract terms, in-game advertising, sales figures, marketing plans, product designs, and possible future songs and artists to be featured;
• developing a guitar controller for the XBox 360 version of Guitar Hero II for three months after release;
• soliciting Activision employees, partners or Asia-based manufacturing partners; and
• taking any steps to develop, market, manufacture, sell, or distribute any guitar or drum based video games.

As recently as December 27, 2006, Activision and Red Octane had settled a different dispute with TAC concerning the sale of unlicensed guitar peripherals. See here for details.

Sources: Gamasutra | GameSpot | Kotaku

Categories: Controller Cases, Copyright Cases, Employment Law Cases, Misc. Contract Cases, Non-Compete Cases, Trade Secret Cases, Trademark Cases, Unfair Business Practice Casses

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As expected, on December 22 The Ant Commandos and RedOctane settled their Guitar Hero controller/peripheral suit and countersuit. 1Up.com summarizes the dispute in this amusing way:

Anyway, so RedOctane sued the Ant Commandos, claiming rights infringement on their popular Gibson SG brand of guitar controllers. The Commandos fired back claiming that the SG stepped all over their existing patents on technology for 3-button Guitar Freaks! guitars. Everybody was fingerpointing, it sucked.

While details of the settlement have not been disclosed a representative of Ant Commandos confirmed to GameSpot that its products would continue to be distributed. Jack Black and the Rightous Gods of Rock will be happy with this outcome!

Dale’s Comment: Until I discovered that neither the Ant Commando nor the RedOctane controllers will work with the PS3, one of the primary reasons I wanted to purchase a PS3 was to play Guitar Hero. I had hoped that like most PS2 games, it would be playable on the PS3. Happily, Guitar Hero 2 is coming to the XBox 360 so I won’t need to purchase a PS2 in order to finally play this game.

Sources: Gamasutra | GameSpot | 1UP.com | GameIndustry.biz

Categories: Controller Cases, Copyright Cases, Product Packaging, Settlements, Trademark Cases, Unfair Business Practice Casses

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Forbes provides this article and interactive pie chart explaining/breaking down the cost structure of modern video games such as the blockbuster Gears of War:

Read Forbes Article

View Interactive Pie Chart

Here’s a Summary of the Interactive Pie Chart:

• 25%/$15 - Art Design
• 20%/$12 - Programming and Engineering
• 20%/$12 - Retailer’s Cut
• 11.5%/$7 - Console Owner Fees (to Microsoft/Nintendo/Sony)
• 7%/$4 - Marketing Costs
• 5%/$3 - Marketing Development Fund (print circulars/banner ads, etc.)
• 5%/$3 - Manufacturing Costs, Packaging
• 5%/$3 - Licensing Fees (personality rights, character and story licenses, copyrights, trademarks, etc.)
• 1.5%/$1 - Publisher Profit
• 1.5%/$1 - Distributor Fees
• 0.3%/20¢ - Corporate costs (management, overhead, legal fees )
• 0.05%/3¢ - Hardware Development Costs (Developer kits, demo units etc.)

Categories: Character License Cases, Featured Articles, Personality Rights Cases, Startup Game Developer Issues, Trademark Cases

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Wolfman Productions was using Rockstar's GTA San Andreas logos/trademarks on its webpage promoting Jack Thompson's college detate tour. Jack Thompson is on the record for saying he is out to destroy Rockstar. Rockstar's parent, Take Two, sent a cease-and desist order to Wolfman Productions. Wolfman complied. As of this posting Master Chief, Laura Croft, Doom and Postal images/trademarks/depictions are still on that page.

Sources: GamePolitics.com | Wolfman Productions Debate Page

Categories: Cease & Desist, Jack Thompson, Trademark Cases

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I reported on November 10 that the ESRB had sent cease and desist letters to Kotaku, The BBPS and others concerning their reporting on a T-Shirt that parodies the ESRB logo (see the offending logo on the t-shirt depicted to the left). Despite being notified by Kotaku that the post is editorial content and not an advertisement for the sale of a T-shirt, the ESRB continued to demand the removal of the post.

The ESRB has since recanted and sent a letter to BBP&S (no workd on Kotaku yet) containing the following:

The ESRB Rating Icons are valuable trademarks of ESA, and we must be vigilant in protecting them against unauthorized commercial uses, lest our trademark rights become diluted. At the same time, we also understand and respect the First Amendment rights of those who, like bitsbytespixelssprites disseminate news and information.

That said, we have taken a second look at this issue and concluded that bitsbytespixelssprites was reporting on a product in the marketplace, and is not involved in distributing or marketing this product, and thus did not engage in any conduct sufficient to trigger the issuance of the cease and desist letter we sent. Please accept our apologies. I am happy to discuss this with you further if you so desire.

Sources: GamePolitics.com | Joystiq

Categories: Trademark Cases

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The ESRB is apparently demanding that Kotaku remove a post on their website describing and depicting a T-Shirt that parodies the ESRB logo (see the offending logo on the t-shirt depicted to the left). Despite being notified by Kotaku that the post is editorial content and not an advertisement for the sale of a T-shirt, the ESRB continues to demand the removal of the post. The ESRB demand letter states, in part:

We believe that this t-shirt ad will result in consumer confusion, and a substantial likelihood that the ESRB certification marks will face tarnishment and dilution.

Dale’s Comment: I personally don’t get the parody joke. Unfortunately the current state of trademark law is such that the trademark owner must fiercely protect its mark or face loosing it. This is an area of IP law that I believe is ripe for reform. The recent spat of “pod” related lawsuits brought by Apple against any company or service including ‘pod’ in their corporate, product or service name is another example of this silliness. Chris Bennet at the law firm of Davis & Company wrote this interesting blog entry on the topic. While the ESRB may have a case against the t-shirt manufacturer (and even that, I believe, is a tenuous case), they would have a much tougher time in any legal action brought against Kotaku based on this editorial post because Kotaku is not using the parodied logo in commerce. It merely comments on the existence of the shirt in a blog post. Trademark law is designed to keep others from using the trademark holder’s marks in commerce - not to keep editorialists from commenting on the existence of items that possibly infringe another’s trademarks.

[Update:] TheBBPS, a one man blog, apparently also received a cease and desist order from the ESRB for a similar blog post and took down the post. Destructoid, still another gaming blog, has seemingly decided to keep its post on the t-shirt up despite also receiving an ESRB cease and desist letter.

Sources: Kotaku | GamePolitics.com | Davis & Company | MMORPG Blog

Categories: Cease & Desist, Humour, Trademark Cases

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The Ant Commandos and RedOctane are negotiating a settlement according to a motion filed by both companies on October 26

Sources: GameSpot | Xbox 360 Net | Yahoo! Games

Categories: Controller Cases, Copyright Cases, Trademark Cases, Unfair Business Practice Casses

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The new Mortal Kombat Armageddon game has a built-in character editor. Gamers can mix and match clothing, body types, hairstyles and facial characteristics to create original characters to be played/fought in the game. The enterprising e-zeen Gaming Target posted this story providing character editor formulas for gamers to use to create famous, and infamous, characters including a formula for creating anti-game-violence crusader Jack Thompson.

Jack Thompson, apparently not quite understanding the character editor distinction, sent off a cease and desist letter to Midway, the game’s publisher, with the following contained therein:

“It has today come to my attention that the newly recently Mortal Kombat: Armageddon contains an unauthorized commercial exploitation of my name, photograph, image, and likeness within the game.”

“You are commanded to cease and desist immediately from the distribution of this game because of this unauthorized, illegal content…”

“It would appear that your company has done this at least in part because I sued you all in the Paducah school massacre case and further because I appeared on CNN’s Anderson Cooper 360 when your company came out with your profane, violent, and idiotic Blitz: The League.”

To be clear, there is no crusading Florida lawyer character that is shipped with the game. On the presumption that Jack Thompson is aware of the Marvel v. NCSoft decision (see linked posts below) which is on point, this demand will likely just fade away once Mr. Thompson realizes what has happened here. The mere inclusion of a character editor does not, in itself, infringe anyone’s IP or personality rights any more than the manufacture and sale of Etch-a-Sketches does.

Sources: GamePolitics.com| Gaming Target | Gamasutra | joystiq | The Inquirer | GameSpot | EuroGamer | GWN | Pro-G | igniq.com

Categories: Cease & Desist, Character License Cases, Copyright Cases, Humour, Jack Thompson, Trademark Cases

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Sony has won a High Court Judgment in the U.K. banning Hong-Kong based Lik-Sang.com from selling PSP consoles into the European Economic Area. While Hong-Kong-based Lik-Sang did participate in pre-trial activities, it did not show up in court to contest the case. Thus, a default judgment was awarded to Sony.

This action was launched in August of 2005 when Lik-Sang sold PSPs into Europe after Sony delayed North American and European shipments for many months after the Japanese PSP launch. The same sort of delay is about to occur with the PS3. Sony is launching the PS3 in the Japanese and North American markets months before Europe.

[October 24 Update:]After years of fighting Sony, Lik-Sang has closed its e-doors. In an interesting side-story, Sony’s European management purchased Sony products from Lik-Sang when unavailable in Europe (See BBC Story). Pascal Clarysse, former marketing manager for Lik-Sang, had this to say on closing:

“Blame it on Sony. That’s the latest dark spot in their shameful track record as gaming industry leader. The ‘empire’ finally won. A few dominating retailers from the U.K. probably will rejoice (in) the news, but everybody else in the gaming world lost something today.”

Sony dismissed this as sour grapes. A similar Hong-Kong-based case between the parties continues.

Dale’s Comment: I understand Sony’s need to protect the interests of its European distributors and its trademarks. I also understand its wanting to protect its own economic interests by means of region-by-region product launches. But its claim that the lawsuit was brought to protect consumers’ safety is, of course, nonsense.

In a world of global markets with the ability to deliver products throughout the Globe overnight, one wonders if this market-by-market distribution model is appropriate any more. It certainly is far from consumer friendly or fair. Lik-Sang met a real consumer need. Through Lik-Sang, Sony’s most loyal fans had a means to purchase Sony products long before Sony had the wherewithal to launch/distribute products in their particular country. Sometimes it takes years before Sony launches a product into a given market (if ever). With this ruling, there is no legal way for etailers to sell into markets not served, or underserved by Sony and its resellers.

As a Canadian living right next to the U.S., I have oft experienced the frustration of not being able to purchase products and services only made available in the U.S. I relish the fact that etailers such as Lik-sang are willing to serve the needs of consumers in under-served regions of the world.

Lawsuit Stories: Gamasutra | Engadget | GameIndustry.biz | GameSpot | *GameDaily.biz | PC Pro | IGN | ars technica | TVG | BetaNews | Pocket-lint | GameIndustry.biz| Daily Tech

Lik-Sang Closing Stories: Lik-Sang.com Notice | Gamastura | ars technica | Outlaw.com | ZDNet | Engadget | BBC | GameSpot | GameDaily.biz | GameShout | CNet | afterdawn | PC Pro | IGN | NeoSeeker | Pocket-Lint | Gizmodo | Inquirer | Hexus | GameIndustry.biz | EuroGamer | Kotaku | Gadgetspy | PC World | Games Digest

Blogosphere: Bit-tech.net

Engadget Podcast 93 Coverage (Time Index 4:44-12:33).

Related Posts:

• Sony Wins U.K. Lik-Sang Grey Market Case - Lik-Sang Shuts Down (Oct 20-24, 2006)
• Sony Sues Online Retailer for PSP Sale (August 8, 2005)
• Sony Wins Another PSP Import Case Against Nuplayer (July 20, 2005)
• Sony Wins Injunction Against PSP Importer ElectricBirdLand (June 27, 2005)
• Sony and UK Retailer in Dispute over PSP Trademark Issues (June 3, 2005)

Categories: Distribution Agmt Cases, Grey Market Cases, Import/Export Cases, Struggling Firms, Trademark Cases

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It appears Konami won this one. Roxor has agreed to transfer all IP rights in and to In the Grove to Konami.

Sources: Gamasutra | GameSpot | GameIndustry.biz | Yahoo! Games | joystiq | Konami Press Release | Roxor Press Release

Related Posts:

• Konami Settles with Roxor - ‘In the Groove’ IP Transfered to Konami (October 19, 2006)
• Konami Files Lawsuit Against Roxor Over Dance Game (May 12, 2005)

Categories: Patent Cases, Settlements, Trademark Cases, Unfair Business Practice Casses

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The Ant Commandos (TAC) is countersuing RedOctane, alleging the guitar controller was first designed by TAC’s part owner Topaway and its trade dress later copied by RedOctane after RedOctane’s CEO visited its Chinese factory and subsequently purchased several hundred of its controllers. In addition TAC has filed for an injunction asking that Activision and RedOctane be prevented from infringing on the “trade dress” and that Guitar Hero software be unbundle from SG controller to allow for fair competition.

Sources: GameSpot | Gamasutra | Next Generation | Kotaku | Joystiq | IGN | Silicon Era | GameDaily.biz

Categories: Controller Cases, Copyright Cases, Trademark Cases, Unfair Business Practice Casses

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RedOctane, the developers of the popular Guitar Hero PS2 video game, have sued The Ant Commandos alleging trademark infringement, unfair competition and copyright violation among other claims in connection with the sale of The Ant Commandos’ unlicensed line of guitar-like controllers.

Sources: GameSpot | Gamasutra | Next Generation | Kotaku | ars technica | joystiq

Categories: Controller Cases, Copyright Cases, Product Packaging, Trademark Cases, Unfair Business Practice Casses

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The ‘professional’ online gaming clan/guild The Syndicate has registered a trade-mark. Davis & Co. has posted an interesting blog entry on this registration.

Dale’s Comment: As professinal gaming continues further into the mainstream and as more players are make viable careers out of professional gaming, we will no doubt see increasing numbers of such clan/guild professional trademark registrations in the same way that sports teams have used trademarks to protect their valued brands.

Sources: Davis & Co. LLP  |  The Syndicate’s Explanation

Categories: Trademark Cases, Trademarks

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Eidos, the publisher of the famous Laura Croft/Tomb Raider video games, is contemplating bringing a copyright infringement suit against Singapore publisher Ozura Mobile over its new game “Lava Croft“. The game is an action adventure game featuring an Asian femme-fatal lead that seems quite similar to the famous Eidos character.
 
Sources: GameIndustry.biz  |  EuroGamer  |  Kotaku  |  Ferrago  |  Club Skill
 
Note: See related stories posted on Feb 15, 2006. Well, in truth, they are not related, but you can see stories about the new, err, face of Laura Croft there.
 
Dale’s Comment: While the press accounts mention Eidos’ considering copyright breach litigation, the use of the name Lava Croft for a game and character title also raises the spectre of trademark infringement.

Categories: Character License Cases, Trademark Cases

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In a decision that could be important for game developers, a District judge has ruled that Rockstar’s use of the trade dress and trademark ‘Pig Pen’ over a fictional strip club in GTA San Andreas does not infringe upon a similarly styled ‘Play Pen’ strip club trademark in Los Angeles. The court ruled that Rockstar’s use of “the Play Pen trade dress and mark presents little, if any, chance that consumers will be misled about the content of the game”.
 
Sources: Gamespot  |  Gamasutra  |  1Up.com  |  GameIndusry.biz  |  Eurogamer  |  Bit-tech.net  |  Spong  |  Kotaku  |  Playfuls  |  GamePolitics.com

Categories: Decisions, Trademark Cases

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In this story Kotaku broke the news that Burger King was considering a promotion featuring Burger King-branded XBox 360 games using Burger King’s cartoon characters. The story included mockups, concept art and a description of the promotion. The general counsel of Burger King’s market research company, Greenfield Online, contacted Kotaku, and demanded the removal of the images and text regarding the game concepts alleging that Kotaku was participating in infringement of Burger King’s confidential, proprietary and copyrighted information. In its characteristic irreverent manner, Kotaku responded: “We’re not taking down the post, but we will take some of those scrumptious breakfast sandwiches the King has been pedaling. We’ll gladly trade in our claim of Fair Use for a bag full of delicious sausage Croissan’wiches.”
 
Sources: Kotaku  |  1Up.com  |  Addict3D  |  Gamespot

Related: Joystiq  |  BK Promotion FAQ  |  Xbox 360 Fanboy

Categories: Copyright Cases, Trademark Cases

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Letter from Red Cross to Davis & Co.
The Red Cross is currently contacting members of the video game industry regarding their use of the symbol in video games—especially violent games—and asking them to stop using the symbol.

Sources: Davis & Co.  |  GameIndustry.biz  |  Calgary Herold  |  Joystiq  |