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IP infringement scrabbed

Originally posted 2008-12-17 10:00:01. Republished by Blog Post Promoter

How many Scrabble points is INFRINGEMENTThe Scrabulous case has been settled!

According to court documents, the case was voluntarily dismissed at the request of the plaintiffs. Neither the Agarwalla brothers nor Hasbro were available for comment, but a statement posted late Monday on the Lexulous site declared that “Pursuant to the settlement, RJ Softwares has agreed not to use the term Scrabulous and has made changes to the Lexulous and Wordscraper games (in the US and Canada) to distinguish them from the Scrabble crossword game. Based on these modifications Hasbro has agreed to withdraw the litigation filed against RJ Softwares in federal court in New York in July of this year. As modified, the Wordscraper application will continue to be available on Facebook and Lexulous will be available on the Lexulous.com Web site.”

Hat tip to Victoria Pynchon, the creator of the brilliant graphic above featured in our previous coverage.

UPDATE:  From Ryan Gile.

Calling Captain Obvious: Trademark use versus saying something

Archie Bunker Generic Beer

“Beer.”

Stop the presses and raise a glass in belated farewell toast to Archie Bunker’s generic beer!  Here’s the big trademark decision that had the IP law Internet foaming last week, per the writeup by the talented Aaron D. Johnson:

Trademark use Within an Expressive Work Must Only Pass the Rogers test, Not a Likelihood of Confusion Analysis: Mil-Spec Monkey v. Activision

The likelihood of confusion test is often called the “cornerstone” of trademark infringement law.  It may be in many circumstances, but it does not apply to allegations of infringement within expressive works, as the recent Northern District of California case of Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc., No. 14-cv-2361 (N.D. Cal. Nov. 24, 2014), makes clear.  If the trademark use occurs within an expressive work, the only test that applies (at least in certain circuits) is the Rogers test.  The Rogers test is a far harder standard to meet, requiring that the trademark use have “no artistic relevance to the underlying work” or “explicitly mislead[] as to the source” of the work.

The Mil-Spec case revolves around the latest version of the Call of Duty video game series.  Like the earlier editions in the series, the latest version, Call of Duty: Ghosts, has its players participate in realistic combat missions, either in single-player campaigns that involve plots and storylines, or with and against other players in multiplayer contests.  The court highlights the fact that while the game takes place in a fictional setting in the near-future, the game strives to Arthur Johnsonbe “highly realistic,” with military equipment based on weapons and vehicles that currently exist, incorporating the names and logos of existing armed forces and organizations, and the use of advanced graphics. . . .

Call of Duty: Ghosts allows players in multiplayer mode to customize their digital personas – choosing gender, uniform, weapons, accessories, and whether to include any patches on their uniform. Crucially, one of the patches that the game allows players to put on their characters is highly similar to the Mil-Spec “angry monkey” patch. The patches are visible during the course of the game if one of the players has chosen to put them on his or her character. The angry monkey patch also makes a brief appearance during the course of gameplay featured in an advertisement for the game. Mil-Spec brought a lawsuit against Activision alleging a variety of claims including copyright infringement and trademark infringement. Activision moved for summary judgment on the trademark and unfair competition claims, on the basis that its use of the angry monkey patch was protected by the First Amendment.

And Acti-Vision won.  Why?

Read More…

Madden ’nuff

Here’s a guy who just may be in for some serious money!

So, what magic words can resurrect a potentially multi-million-dollar copyright lawsuit from a statute of limitations bar?  “They lied!”

Daniel Davidson explains regarding a suit against gaming giant Electronic Arts over the IP powering its famous Madden NFL franchise:

The iconic game that has caused millions of men to disregard the women in their life and convince them that they could replace the likes of Bill Belichick and Rex Ryan due to their skills, has been sued by the “original” designer.

Robin Antonick, the guy credited with creating the first version of the game has filed a lawsuit against Electronic Arts over their use of his intellectual property.  He alleges that his software, released in 1988, is still being used by the Madden NFL franchise and that he has not been compensated appropriately.

The story begins when EA split ties with Antonick and told him that they would not be using any of his intellectual property because the game was going to be transformed into more of an “arcade” game.  This was told to him in the early 90s.  Upon this representation by EA, Antonick went silent until recently when he heard the founder of EA make a reference to how they still utilize the original software.

It has probably come to your attention now that there must be some sort of statute of limitations against Antonick’s claim.  It has been almost twenty years.  This is a valid assumption.  The statute of limitations for copyright claims is three years and the clock starts when the infringement stops.  With almost two decades down, EA could have [defended on the ground] that their infringement stopped and that his time has come and gone, but then there is a little thing called “tolling.”  Tolling is a defense to statute of limitations in which the time does not start until the copyright owner has actual knowledge of the infringement.

In the present case, Antonick alleged just that.  That he was kept in the dark about any infringement.  The judge agreed and his first step toward millions of dollars in compensation has been made successful. Cheers.

That is one neat little blog post!  (“[A]nd then there is a little thing called ‘tolling.'”) And a neat little legal claim too.  What’s the line on an early settlement?

Virtual infringement

People are starting to talk about the trademark issues associated with gaming and virtual reality:

Linden Lab has a well-deserved reputation for respecting intellectual property. Obviously, it doesn’t support trademark infringement. But it is equally as obvious that the explosive growth of Second Life has overwhelmed Linden Lab’s ability to devote sufficient resources — likely any resources — to this issue. Consider that the list of examples of marks that are “usually not acceptable” matches the biggest subjects of infringement almost perfectly. This isn’t really a criticism of Linden Lab; in the real world, the government doesn’t police trademark usage on companies’ behalf either.

As in the case of real world trademark infringement, it is up to the officers of concerned companies themselves to take steps to protect their companies’ intellectual property in virtual worlds. And it is this author’s opinion that businesses will need to begin paying close attention to the problem of trademark infringement in virtual spaces much sooner than they think, if they wish to avoid legal and practical difficulties later.

Always good advice. The issue seems, as we were discussing in the INTA “Internet Trademark Use” subcommittee last week, to fall into two categories, and two other categories. The first dichotomy is whether the infringement involved trademarks of the game or virtual community in question (e.g., Second Life, There) itself (or its reasonable facsimile?). The second axis runs along who is doing the infringement. So we have four possibilities:

  1. Community member infringing community’s trademark (e.g., game tokens or currency, or other virtual bling) — always covered by user agreement
  2. Community member infringing third party’s trademark (e.g., virtual community member opens up a Nike store of Second Life) — maybe covered by user agreement
  3. Non-community member infringing community’s trademark (e.g., game tokens or currency being sold on eBay — third party is merely an intermediary) — not directly covered; trademark infringement or fair use?
  4. Non-community member infringing third party’s trademark (e.g., selling unprotected currency or points to use in virtual Nike store on Second Life) – Okay, so perhaps there are only three possibilities. Or is there a creative way for the virtual community owner to reach out and grab value here, too?

This is an interesting set of developments. We’d better get used to it, too. Virtually Blind, where Benjamin Duranske focuses on this topic, clearly already has. Good blog to bookmark.

UPDATE: A dark side?

Best of 2011: Madden ’nuff

First posted October 4, 2011.
Here’s a guy who just may be in for some serious money!

So, what magic words can resurrect a potentially multi-million-dollar copyright lawsuit from a statute of limitations bar?  “They lied!”

Daniel Davidson explains regarding a suit against gaming giant Electronic Arts over the IP powering its famous Madden NFL franchise:

The iconic game that has caused millions of men to disregard the women in their life and convince them that they could replace the likes of Bill Belichick and Rex Ryan due to their skills, has been sued by the “original” designer.

Robin Antonick, the guy credited with creating the first version of the game has filed a lawsuit against Electronic Arts over their use of his intellectual property.  He alleges that his software, released in 1988, is still being used by the Madden NFL franchise and that he has not been compensated appropriately.

The story begins when EA split ties with Antonick and told him that they would not be using any of his intellectual property because the game was going to be transformed into more of an “arcade” game.  This was told to him in the early 90s.  Upon this representation by EA, Antonick went silent until recently when he heard the founder of EA make a reference to how they still utilize the original software.

It has probably come to your attention now that there must be some sort of statute of limitations against Antonick’s claim.  It has been almost twenty years.  This is a valid assumption.  The statute of limitations for copyright claims is three years and the clock starts when the infringement stops.  With almost two decades down, EA could have [defended on the ground] that their infringement stopped and that his time has come and gone, but then there is a little thing called “tolling.”  Tolling is a defense to statute of limitations in which the time does not start until the copyright owner has actual knowledge of the infringement.

In the present case, Antonick alleged just that.  That he was kept in the dark about any infringement.  The judge agreed and his first step toward millions of dollars in compensation has been made successful. Cheers.

That is one neat little blog post!  (“[A]nd then there is a little thing called ‘tolling.'”) And a neat little legal claim too.  What’s the line on an early settlement?