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Wands and the Wii
The makers of the interactive game “MagiQuest,” Creative Kingdoms LLC, have filed an International Trade Commission (ITC) complaint against Nintendo alleging that the importation of the Wii infringes its patents relating to motion-activated handheld devices. MagiQuest is a live-action adventure game, often installed at tourist destinations, where players use a wireless infra-red wand to interact with scattered physical objects. In its complaint, Creative Kingdoms claims that its patents covering these wands also cover the Wii motion controller. The complaint states: “The distinguishing feature of both MagiQuest and the Wii system is a motion-activated, portable wireless handheld device that facilities a physically interactive play experience for participants… Nintendo infringes U.S. Patent Numbers 7,500,917; 7,761,637; 7,850,527; and 7,896,742 through importation of its Wii system and remote control.” The goal of a complaint at the ITC is to block the importation of the infringing product (the Wii, in this case) into the U.S.… Continue Reading
>Gibson Brings Another Defendant On-stage
>Gibson has filed suit against another defendant alleging infringement of its concert simulation patent. This time, it involves Seven45 Studios’ new video game Power Gig: Rise of the SixString. Gibson lost its first suit involving the same patent against Activision in 2009. In June of 2010, Gibson settled with Harmonix, Viacom, and EA in a similar suit.
>MDY v. Blizzard – The Court of Appeals Weighs-in
>As you may recall (and as we’ve been covering), last January, an Arizona District Court found that using MDY’s Glider bot program in conjunction with Blizzard’s World of Warcraft game software fell outside the scope of the game’s End User License Agreement (EULA). The District Court then held that MDY is responsible for players running Glider outside the scope of the EULA, and awarded Blizzard a $6.5 million judgment against MDY for copyright infringement. MDY appealed the case to the Ninth Circuit Court of Appeals, which recently issued its own decision. The Ninth Circuit overturned the District Court’s finding of copyright infringement, but nevertheless held MDY liable for breach of the EULA on a different ground – violation of the Digital Millennium Copyright Act (DMCA).The Ninth Circuit held that using Glider while playing World of Warcraft in violation of the EULA did not amount to copyright infringement. The Ninth Circuit… Continue Reading
>Tip: IP Indemnification
>As patent and other intellectual property lawsuits continue to litter the video game landscape, it makes a mind wander to one of everyone’s favorite clauses in developer and publisher agreements: indemnification (which we have discussed before). This is one of those clauses that gets buried at the end of the agreement, often on the hope that it never gets discussed. And, certainly neither party ever hopes to have to invoke the indemnity clause. The problem arises that, while the clause generally does not see the light of day, should the clause ever become necessary — the dollars and stakes are bigger than ever anticipated.A publisher will generally try to seek a broad indemnity from a developer, so that, if a patent owner sues the publisher alleging that the developer’s game infringes the patent (or other intellectual property), the publisher will be protected. The indemnity clause will be used to shield… Continue Reading
>The End of Used Video Games?
>Are you one of the 75 million used video game purchasers in the U.S? Or, are you one of the 26 million used video game sellers looking to subsidize your next game purchase with a trade-in? If so, you might not want to delay too long before making your next trip to GameStop. The Ninth Circuit Court of Appeals recently ruled that Timothy Vernor, an eBay seller of used commercial versions of Autodesk’s AutoCAD, is not permitted to sell used AutoCAD discs under copyright law. The court held that the “first sale” doctrine that traditionally protects used book sellers from charges of copyright infringement does not apply to used software sellers. The court based this distinction on the finding that the company that originally sold its old copy of AutoCad to Vernor was not an owner of software, but merely a licensee. The court held that a software user is… Continue Reading
>Trademark Clearance and Mafia Wars
>As a reminder to us all of the reason for a good trademark clearance search, game developer Digital Chocolate, Inc., has filed a trademark infringement suit in the Northern District of California against Zynga Game Network, Inc., creator of popular Facebook games like Farmville and Mafia Wars. The complaint alleges that Zynga, which released Mafia Wars in 2008, has “hijacked” the Mafia Wars name from Digital Chocolate. Although Digital Chocolate never registered the Mafia Wars mark in the U.S., it claims Zynga is violating the common law trademark rights it has had since it started selling its own Mafia Wars game in 2004. For the careful entrepreneur, this case highlights the importance of an adequate pre-launch trademark clearance search to minimize the risk of problems in the future.A pre-launch trademark clearance search might encompass, for example, federal and state trademark registrations and applications, common law rights, web searches, and domain… Continue Reading
>FTC Comes Down On Fake Video Game Review
>Most people who use online consumer reviews as an aid for decision-making recognize an inherent dilemma: how do you know whether the reviews are honest, consumer reviews, or phony reviews posted by a business owner, its competitor, or a paid reviewer? Apart from hit-or-miss strategies like ignoring reviews by one-time contributors or those with over-the-top review language (positive or negative), there really isn’t a good way to distinguish the two. Cue the Federal Trade Commission, which this week settled an enforcement action brought against Reverb Communications – a public relations agency hired by video game developers to promote their products. The original complaint alleged that Reverb engaged in deceptive advertising practices by posting positive online game reviews in the iTunes Store that gave the impression that they were written by disinterested consumers, rather than by a paid advertising or PR firm. The terms of the settlement require Reverb, which admitted… Continue Reading
>Microsoft, Datel Battle over the Accessory Market
>The design patent infringement battle between Microsoft Corp. and Datel Design and Development Ltd. over Xbox 360 accessories in the U.S. might be coming to an end, at least for now. The two companies appear to have reached a settlement agreement this week resolving various infringement proceedings relating to Datel’s Xbox 360 compatible game controllers. But another part of the conflict between the Xbox creator and the accessory manufacturer is just heating up in federal district court in California. The California action involves antitrust claims brought by Datel against Microsoft and highlights some of the strategies Microsoft is using to gain an advantage over competitors in the Xbox accessory market, as well as some of the obstacles it faces in doing so. Datel filed the complaint in response to a Microsoft software update for the Xbox 360 that rendered Datel’s memory cards incompatible and useless with respect to the system,… Continue Reading
>NFL Retirees Suing EA Over Madden
>Electronic Arts, Inc. is again feeling the pressure regarding its sports-based video games, this time thanks to a class action centered around its “Madden NFL” video game franchise. The complaint was filed in the District Court for the Northern District of California on Thursday, July 29, 2010, by former Cincinnati Bengal and Tampa Bay Buccaneer Michael “Tony” Davis, on behalf of himself and about 6,000 former NFL players. It claims that EA is intentionally pilfering the players’ publicity rights under California law, through the unauthorized use of the players’ likenesses to recreate over 140 NFL teams of the past. Specifically, the complaint states that older versions of Madden NFL included player profiles for each “player” on a “vintage” team featured in the game, such profiles including descriptions of the players’ positions, number of years of NFL experience, physical characteristics, and relative skill level in different facets of the game. These… Continue Reading
>Boomshine v. ChainRxn update
>As we covered back in March, casual game designed Daniel Miller filed a complaint in the Northern District of California, accusing the creator of a copycat game, known as ChainRxn, Yao Wei Yeo, and Facebook, of copyright infringement. The federal judge hearing the case has recently issued a ruling refusing to dismiss the suit, shooting down a argument by Facebook that Miller didn’t properly allege infringement based solely on how the two games “look and feel.” Miller’s complaint accused Yeo of direct copyright infringement, claiming he improperly accessed the source code for Miller’s game Boomshine to create ChainRxn. Facebook had argued that Miller didn’t adequately plead direct infringement by Yeo, because Miller’s bare complaint that ChainRxn “looks and feels” identical to Boomshine is insufficient to allege that Yeo had copied the game source code. The Judge disagreed with Facebook, noting that a plaintiff can rarely examine a defendant’s source code… Continue Reading
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