Ok, I've spent the better part of two evenings finishing the campaign mode in Halo 3, so it's about time to come out of my self-induced Halo 3 fog. A colleague of mine and I were discussing about a month or so ago the fact that Linden Lab's terms of service for Second Life are very prohibitive of patents and patent rights being enforced by SL residents. Well there is a fairly comprehensive post on Virtually Blind regarding the topic that I feel compelled to link to. It's an interesting read. Enjoy.

Hey everyone, I was on vacation last week, so there were no new posts last week.

As for this week, in honor of Halo 3, there will be no post this week either (i.e., I expect to be too busy playing Halo 3 to be able to post this week....)


We'll be back to our regularly scheduled programming next week.

-Ross

Frosty Treats Inc. v. Sony Computer Entertainment America Inc. 426 F.3d 1001 (8th Cir. 2005)

I scream, You scream, We all scream for Ice Cream!

Sony was sued over its use of an ice cream truck and clown character in its Twisted Metal video game series. Sony has 6 games in the series, but only the last one, “Small Brawl” depicts an ice cream truck with a label of “Frosty Treats” on the side. Frosty Treats alleged that their mark “Frosty Treats” was protectable under trademark law and consumers would think Frosty Treats was affiliated with the games.

Frosty Treats sells frozen deserts out of ice cream trucks. Their vans have a 9” X 4” decal on the rear of the truck with “Frosty Treats” in pink capital letters. The trucks also have a clown pointing his finger saying “watch cars-cross at rear” so children will cross at the rear of the truck.

Twisted Metal depicts a devious clown driving an ice cream truck (named Sweet Tooth or Needles Kane), a purple-nosed, black-eyed clown on the side of a remote control truck and a clown head on the antenna of the remote control truck. The court held that the clown in Twisted Metal had “virtually no resemblance to Safety Clown.” Even Frosty Treat’s CEO admitted there was no resemblance. He stated at his deposition, “They don’t look the same way, but . . . if the Safety Clown had a brother who was nasty and mean, it would look somewhat like Sweet Tooth.”

The Court of Appeals affirmed the decision of the district court holding that the mark “Frosty Treats” was not protectable, the clown graphic was not likely to cause consumer confusion, and Frosty Treat’s mark or trade dress was not being diluted. The court found “Frosty Treats”, which had never been registered was at the most, a descriptive mark without a secondary meaning, and not protectable as a trademark. While Frosty Treats conducted a survey to prove secondary meaning, they were unsuccessful. The court found Sony’s survey of 204 children and 200 adults who couldn’t remember the names of any ice cream trucks more convincing.

The court noted that the use of a clown on ice cream trucks is not novel. Many ice cream trucks have clown designs. Even though the ice cream truck in Small Brawl depicted Frosty Treats on the ice cream truck, the court held that “no reasonable juror” could find that the trade dress of Frosty Treats and the depictions in Twisted Metal were not similar, nor was Sony trying to pass off the Frosty Treat’s mark as its own.

Method of Playing a BINGO Game with Progressive Jackpot

Issued on January 9, 1996 to Gary Weingardt and assigned to Gary Weingardt Trust.

Summary:

In case you were bored with the original game, or thought that BINGO was a game for your grandparents… This patent attempts to create a more challenging BINGO game than the traditional by adding two columns and two rows to the BINGO card and adding an additional 72 numbered balls. The new and improved game would be called BINGOES. The new and improved BINGO card could be used to play the traditional BINGO game or BINGOES. The card could be marked with different colors in order to play the traditional BINGO game. i.e. the five rows by five columns may have a white background, where the remaining two columns and two rows would have a red background to play BINGOES. In BINGOES, a winning combination could be a straight line of seven numbers in a row either vertically, horizontally or diagonally. Additional payouts could be made for the four corners, the eight spots around the center free space, the outside rectangle, or an intermediate rectangle. The operator can designate payouts based on the degree of difficulty of obtaining the winning combination. In addition, a user could play the traditional game of BINGO while simultaneously playing BINGOES, increasing the odds of winning. Claims appear limited to a variation that includes a progressive jackpot in addition to usual game jackpot.

Exemplary Claim:

The method of playing a game of bingo comprising:

a) providing a player with a bingo card consistent essentially of:

a. a plurality of numbered spaces formed as a matrix having seven rows and seven columns;

b. a first indicium designating a portion of the matrix comprising five contiguous rows and five contiguous columns whereby a five-by-five bingo game can be played thereon; and

c. a second indicium designating a portion of the matrix comprising two contiguous rows and two contiguous columns whereby, when combined with the first indicium, a seven-by-seven bingo game can be played thereon;

b) providing a plurality of bingo balls each having individual numbers corresponding to the numbered spaces on the bingo card;

c) a player making a first wager to be eligible for the five-by-five bingo game and a second wager to be eligible for the seven-by-seven bingo game;

d) randomly selecting consecutive bingo balls;

e) awarding a first preselected amount when the player achieves a predetermined winning combination on the five-by-five matrix of the bingo card;

f) awarding a second preselected amount when the player achieves a predetermined winning combination on the seven-by-seven matrix of the bingo card;

g) a player making a third wager to be eligible for a progressive jackpot pool;

h) designating a portion of the third wager to a separate progressive jackpot pool;

i) establishing a predetermined combination as a winning combination for the progressive jackpot pool; and

j) awarding the progressive jackpot pool to the player when he achieves the predetermined winning combination on the bingo card.

MDY Industries, LLC v. Blizzard Entertainment, Inc. et al.

United States District Court, District of Arizona

Case No. 2:2006cv02555, Filed October 25, 2006

On October 25, 2006, MDY Industries, LLC (“MDY”) filed a declaratory judgment action against Blizzard Entertainment, Inc. (“Blizzard”) and Vivendi, SA (“Vivendi”), Blizzard’s parent company, in the U.S. District Court in Arizona seeking, among other things, a decree from the court that MDY has not violated any of Blizzard’s intellectual property rights relating to the “World of Warcraft” video game.

MDY sells a software application called “WoW Glider” (also known as “Glider”) that essentially automates game play in Blizzard’s World of Warcraft. This automation, however, violates Blizzard’s Terms of Service for World of Warcraft, a fact that MDY actually admits in the “Frequently Asked Questions” portion of the Glider website. See http://mmoglider.com/FAQ.aspx#G3. In addition to allowing gamers to feel like lawless rebels, Glider appeals to World of Warcraft players because World of Warcraft is a massively multiplayer online role-playing game (MMORPG) in which players must spend a great deal of time playing in order to “level up” their characters. Although it would seem strange that gamers would want to find a way to play less, the leveling in World of Warcraft is really only a part of the game, and a tedious part at that. Indeed, once a player reaches the maximum level, he or she can begin playing the “end game” content that is typically more challenging and dynamic than the other game content. Moreover, in addition to automating leveling, Glider also automates some of the other more tedious tasks in World of Warcraft, such as “grinding” reputation and “farming” gold, by automatically and repeatedly killing certain computer-controlled enemies. Glider accomplishes this automation by simulating the keystrokes and mouse movement that would normally be the control input from the player. Thus, instead of playing World of Warcraft for hours to level, grind, or farm, a player can configure Glider to perform whatever tasks he or she desires, and then leave Glider to play accordingly. As Blizzard sees it, however, Glider allows players to cheat by gaining an unfair advantage over others, thus detracting from everyone else’s gaming experience. Unfortunately for Blizzard, Glider was more than a mere demon that could be baninshed, and so they resorted to legal action to stop this alleged cheating.

According to MDY’s complaint, representatives for Blizzard and Vivendi appeared unannounced, (as if by magic?), at the private residence of Michael Donnelly, the sole member of MDY according to Blizzard, on the morning of October 25, 2006. At this confrontation, the Blizzard and Vivendi representatives allegedly accused MDY of copyright infringement, Digital Millennium Copyright Act (“DMCA”) violations, and interference with the contractual relationships between Blizzard and World of Warcraft users. The Blizzard and Vivendi representatives also presented Donnelly with a complaint against him and MDY that included all of these charges, and threatened to file this complaint in a federal court in California if he did not comply with their demands. In imminent apprehension of being sued, MDY brought this declaratory judgment action against Blizzard and Vivendi the same day.

Notwithstanding whether Glider’s violation of the Terms of Service for World of Warcraft is interference with contractual relationships, the real issue in this lawsuit is whether Blizzard can prevent MDY from distributing Glider. Indeed, in February 2007, Blizzard filed an answer to MDY’s complaint in which Blizzard asserted counterclaims against MDY seeking injunctive relief and money damages. In these counterclaims, Blizzard argued that it is entitled to an injunction and money damages against MDY based on, among other things, copyright infringement, trademark infringement, and trafficking in technology designed for the purpose of circumventing copyright protection systems in violation of the DMCA. MDY filed an answer to Blizzard’s counterclaims in March 2007 in which MDY denied most of Blizzard’s accusations and raised various affirmative defenses to all of Blizzard’s counterclaims.

As of August 2007, this case is in discovery under a protective order and will remain in fact discovery until January 25, 2008. For now, World of Warcraft players can still use Glider to do their virtual dirty work (as long as they are willing to risk being banned from World of Warcraft for a Terms of Service violation, that is).

Thanks to Rajit Kapur for his assistance with the preparation of this case summary.

System and Method for Providing User Input to Character Animation

Issued on January 31, 2006, to Electronic Arts Inc.

Summary:

This patent issued to EA, discloses a system and method for providing real-time control over character animation. Basically this patent allows the user to change a character’s animation by real-time input into a joystick. For example in a golf game, the user can control the back swing, forward swing, the power or speed of the swing, whether the ball is hooked, sliced or straight, or whether or not the character takes a practice swing. The input from the joystick is monitored real time by a processor which converts motions in the joystick, such as pulling the joystick handle backwards into a back swing. Since the input is detected real-time, the user is able to change the animation continuously, i.e. the user can change the golf swing in the middle of the back swing, which might not improve your score.

Exemplary Claim:

A system for providing user input for animated character display on an animation display system comprising:

an analog input module configured to receive user analog input related to animated character display and to normalize the user analog input, thereby creating normalized user analog input;

a control state machine module configured to receive normalized user analog input from the analog input module and create a time-based state based on the received normalized analog input, the time-based state modeling an intent of the user with respect to the animated character, and

an animation state machine module configured to receive the time-based state from the control state machine module and to create a list of animations and at least one blending percentage for combining the list of animations based on the time0based state, and providing the list of animations and at least one blending percentage to the animation display system.

Bingo Game Method

Issued on December 8, 1995 to Inventor Gary Weingardt

Summary:

This invention attempts to reinvigorate the classic game of Bingo and lure the gamblers away from video poker, slot machines and table games by providing larger bingo jackpots. The invention includes a bingo card with different colored squares, or a board readout that displays the numbers and their associated colors. The colors may be Blue, Red, Green, and Yellow, etc., and specific jackpots or progressive payouts are associated with each color. For example, a player could obtain the largest Bingo by getting a Bingo of all Blue numbers. The next highest payout might be a Green Bingo, followed by a Red Bingo and then a Yellow Bingo. The smallest payout would then go to a multi-colored Bingo. In this example, there would be the smallest amount of numbers designated as Blue, the next smallest as Green, a larger amount of Red, and the remainder of numbers would be Yellow. There may even be a payout for a “Case Bingo” meaning a Bingo which the player has missed by one number.

Exemplary Claim:

The method of playing a game of bingo comprising:

a) providing a player with a bingo card having a plurality of numbered spaces;

b) providing a plurality of bingo balls each having individual numbers corresponding to the numbered spaces on the bingo card;

c) providing an electronic number reader bingo board having a plurality of numbered spaces corresponding to the number of bingo balls used in the bingo game;

d) a player making a wager to be eligible for the bingo game;

e) randomly designating a portion of the numbered spaces on the bingo board with a first designated marking;

f) designating the remaining numbered spaces on the bingo board as a second designated marking;

g) randomly selecting consecutive bingo balls;

h) if the player achieves a predetermined winning combination on the bingo card of selected numbers having only the first designated marking, awarding the player a first preselected amount.

[Editor's Note: based on the breadth of that claim, at first blush it appears that the claim would read on a Bingo game in which there is a "four corners" bingo in addition to the usual bingo methods. That having been said, I have not read the entire specification or reviewed the prosecution history.]

I have a client that I am helping to get into the Guinness Book of World Records. For what? Well that has to wait until the record is published, but suffice it to say that it got me wondering about world records as intellectual property. Ok, I know they're NOT technically IP, but I've always had a fascination with getting world record, so I figure helping someone else do it would be good enough... for now. My day will come.

In any event, I ran across this article describing the exploits of DK'ers (Donkey Kong'ers) setting world record after world record at the game. An interesting read. But a warning, there is a documentary about attempts to break the Donkey Kong world record, and the article is essentially a spoiler to the movie (in case you planned to watch it).

An Illinois man was sentenced to two years in prison for violating copyright law through the unauthorized sale of video games on his Web site, the U.S. Department of Justice announced late Thursday, August 2, 2007.

Timothy W. Hall, of Mount Vernon, Ill., pleaded guilty May 8 to one count of criminal copyright infringement for his unlawful distribution of hundreds of thousands of copyright works on his Web site, Morbidbackups.net. Hall advertised the sale of hundreds of video games, for Xbox, GameCube, PlayStation 2, and other platforms, on recordable CDs. Hall also offered DVDs containing movies and television programs, the DOJ said.

Video game crime doesn't pay!

Read more here.

Well its not a video game lawsuit, but interesting nonetheless. And, yes, this post could be considered shameless self-promotion. Nonetheless, I was recently quoted in USA Today in an article regarding the Facebook lawsuit, and it's even a good sound bite! Usually quotes get taken out of context or they use the quote that you wish you never said (remember the "work hard, play hard" debacle?) In any event, I thought it noteworthy, so enjoy...