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>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 ?Ç£hijacked?Ç¥ 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?ÇÖt a good way to distinguish the two. Cue the Federal Trade Commission, which this week settled an enforcement action brought against Reverb Communications ?Çô 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?ÇÖs 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?ÇÖs 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 ?Ç£Madden NFL?Ç¥ 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 ?Ç£Tony?Ç¥ Davis, on behalf of himself and about 6,000 former NFL players. It claims that EA is intentionally pilfering the players?ÇÖ publicity rights under California law, through the unauthorized use of the players?ÇÖ 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 ?Ç£player?Ç¥ on a ?Ç£vintage?Ç¥ team featured in the game, such profiles including descriptions of the players?ÇÖ 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 ?Ç£look and feel.?Ç¥ Miller?ÇÖs complaint accused Yeo of direct copyright infringement, claiming he improperly accessed the source code for Miller?ÇÖs game Boomshine to create ChainRxn. Facebook had argued that Miller didn?ÇÖt adequately plead direct infringement by Yeo, because Miller?ÇÖs bare complaint that ChainRxn ?Ç£looks and feels?Ç¥ 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?ÇÖs source code… Continue Reading

>Casual Games and Casual Copying

>Imagine releasing a new flash game on the net and then finding out that someone else made your game into a Facebook/iPhone application without your knowledge. The designer of a certain casual game, Boomshine, Daniel Miller, doesn?ÇÖt have to imagine. His story illustrates why it’s important to understand and consider the range of intellectual property protections available for your next game. Miller has 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, and improperly allowing the game to remain posted even after being notified of the alleged infringement. In both Boomshine and ChainRxn, the game begins with a set of multicolored dots bouncing around a black background. The player?ÇÖs only interaction with the game is a single click to create an initial white circle, which causes any of the dots that collide… Continue Reading

>UK Looking To Offer Tax Incentives for the Gaming Industry

>In the Economic and Fiscal Strategy Report and Financial Statement and Budget Report issued today by the Chancellor of the Exchequer for the United Kingdom, one of the key strategy points raised in conjunction with the overall fiscal strategy of the United Kingdom was to introduce “tax relief for the UK’s video games industry.” Recognition at the highest levels of government of the financial impact of the video game industry — it truly is becoming a Gamer’s World.

>False Marking Suit Targets Activision

>A couple of weeks ago, Patent Compliance Group filed a qui tam action against Activision, alleging that Activision falsely marked Guitar Hero 5, Band Hero, DJ Hero and Guitar Hero Smash Hits with inapplicable patent numbers or improperly as ?Ç£patent pending.?Ç¥ This suit is one of a still-swelling movement of false patent marking suits following closely on the heels of the Federal Circuit?ÇÖs recent decision in Forest Group, Inc. v. Bon Tool Co., which held that damages for false patent marking should be calculated on a per article basis. This result has been that technology companies that sell large numbers of articles to consumers (e.g. video game companies) are at a high-risk of being targeted by one of these suits. A qui tam suit is actually brought on behalf of the U.S. government and provides for a fine of up to $500 for each improperly marked article. However, courts may… Continue Reading

>False Patent Marking

>The false marking statute, 35 U.S.C. ?º 292(a), is a little-known statute (unless you happen to be a patent attorney), that aims to prevent a patent owner from hindering competition by falsely marking their products with a patent number that does not cover the product. The false marking statute provides for damages of ?Ç£not more than $500 for every such offense.?Ç¥ Furthermore, the false marking statute allows ?Ç£any person?Ç¥ to sue for the penalty and split the award with the federal government in a qui tam action. In December 2009, the Federal Circuit, in the suit Forest Group, Inc. v. Bon Tool Co., clarified that ?Ç£every such offense?Ç¥ meant that each article or product made by an company that was falsely marked will receive a fine of ?Ç£not more than $500.?Ç¥ Previously, courts had various interpretations of the statute and might find a single offense and fine a company $500… Continue Reading

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