Microsoft has acquired Twisted Pixel Studios, according to a recent Microsoft press release:

Hidden Image Technology Solutions, a Georgia company, has sued Thomas Barnhart asserting that he falsely promotes himself as the sole inventor of several patents, and has profited from this false promotion. The lawsuit seeks to remove Barnhart as an inventor of those patents, and to instate his co-inventor, Joel Brooks, as the sole inventor of the patents. The patents in question are:

Ross A. Dannenberg publishes new book: “The American Bar Association’s Legal Guide to Video Game Production”

While not a video game case per se, this will likely affect patents claiming video games because the Federal Circuit (a US appeals court for patent matters, among other things) strikes down a computer readable medium claim (aka, Beauregard claim) as non-eligible subject matter for a patent. They don't strike down ALL Beauregard claims, but they do draw a line in the sand where you simply put a computer-readable medium preamble on an otherwise non-technological method. Relevant text appears below. Claim 3 was a method claim that the court first addressed and found unpatentable under section 101. Claim 2 was the beauregard claim:

Regardless of what statutory category (“process, machine, manufacture, or composition of matter,” 35 U.S.C. § 101) a claim’s language is crafted to literally invoke, we look to the underlying invention for patent-eligibility purposes. Here, it is clear that the invention underlying both claims 2 and 3 is a method for detecting credit card fraud, not a manufacture for storing computer-readable information. This case is thus similar to In re Abele, 684 F.2d 902 (CCPA 1982). In Abele, claim 5 of the patent at issue recited “[a] method of displaying data” comprising the steps of “calculating the difference” between two numbers and “displaying the value.” Id. at 908. The court concluded that claim 5 was not directed to patent eligible subject matter because it claimed an abstract idea. Id. However, claim 7 was argued to be different because it recited an “[a]pparatus for displaying data” comprising “means for calculating the differences” between two numbers and “means for displaying the value.” Id. at 909 (emphases added). Though claim 7 literally invoked an “[a]pparatus,” the court treated it as a method claim for the purpose of its § 101 analysis. Due to its “broad” and “functionally-defined” nature, the court found that treating claim 7 as an apparatus claim would “exalt form over substance since the claim is really to the method or series of functions itself.” Id. (citation omitted). Accordingly, the court placed “the burden . . . on the applicant to demonstrate that the claims [were] truly drawn to [a] specific apparatus distinct from other apparatus[es] capable of performing the identical functions.” Id. (citation omitted).

In the present case, CyberSource has not met its burden to demonstrate that claim 2 is “truly drawn to a specific” computer readable medium, rather than to the underlying method of credit card fraud detection. To be sure, after Abele, we have held that, as a general matter, programming a general purpose computer to perform an algorithm “creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.” In re Alappat, 33 F.3d 1526, 1545 (Fed. Cir. 1994). But we have never suggested that simply reciting the use of a computer to execute an algorithm that can be performed entirely in the human mind falls within the Alappat rule. Thus, despite its Beauregard claim format, under Abele, we treat claim 2 as a process claim for patent-eligibility purposes.

Earlier this year we reported on Walker Digital’s suit against 2K Games, filed April 25, 2011. Walker voluntarily dismissed the April claims against 2K Games and all other defendants on April 28 and May 4. Only to sue them again.

In the present suit, filed July 22, Walker alleges that Take-Two Interactive Software, three subsidiaries, 2K Games Inc., 2K Sports Inc,. and Grand Theft Auto-creator Rockstar Games Inc., infringe on patents for technology enabling electronic tournament game play for multiple players and storing player information for future use.

1. Whether the federal securities laws were violated by Defendants’ acts


2. Whether the Prospectus and Registration Statement issued by Defendants to the investing public in connection with the Offering omitted and/or misrepresented material facts about Giant Interactive and its business


3. Whether Defendants’ statements issued during the Class Period were materially false and misleading; and


4. The extent of injuries sustained by members of the Class and the appropriate measure of damages
   

• The Registration Statement for the IPO was inaccurate and misleading, contained untrue statements of material facts, and omitted necessary and material facts


• Giant Interactive was responsible for the contents and dissemination of the Statement and the Prospectus and, as a result, were strictly liable for the misstatements and omissions


• None of the Defendants made a reasonable investigation or possessed reasonable grounds for the belief that the statements in the Registration Statement were true or were not misleading
  

• The Registration Statement contained a Prospectus which was used to induce investors to purchase Giant Interactive’s ADSs


• That Giant Interactive solicited purchases for their personal financial gain through the preparation and dissemination of the Prospectus


• The Prospectus contained untrue statements of material fact and omitted facts necessary to make the statements not misleading


• That Defendants were obligated to make a reasonable and diligent investigation of the statements contained in the Prospectus to ensure that such statements were true


• None of the Defendants made a reasonable investigation or possessed reasonable grounds for the belief that the statements contained in the Prospectus were accurate and complete
  

1. Awarding Plaintiffs damages together with interest (for purchase of the ADSs)


2. Awarding Plaintiffs their costs and expenses of litigation


3. Awarding Plaintiffs further relief as may be just and proper under the circumstances
   

We've been working on a renovation of our PATENTS link, as well as additional content, which is now live. It's a bit cumbersome, but there is a lot more information there now. We'll continue to work on making it more user friendly. Check it out and let us know if you have any suggestions.

According to Fantasy Flight, Puffin through its owner Johannes Paivinen, created the electronic game “Viking Lords” as an iPad version of BattleLore under a different name. Fantasy alleges that Paivinen previously admitted as much in public, and that the substantial similarity between the games was likely to lead to confusion in the marketplace. Fantasy goes on to say in its complaint that it is common for many board games, like Monopoly and Scrabble, to launch online versions, and the average consumer, familiar with this practice, is likely to confuse Viking Lords with the board game BattleLore because they are nearly identical, though in different mediums. In addition, Fantasy Flight asserts that its BattleLore game is highly successful, and has a large following both online, and in the real world, making confusion all the more likely.

The complaint alleges that Impulse informed Microsoft of their patents before the suit, and told them that these patents covered a “wide variety of games where the movement of a player is tracked in three dimensions ... and certain exercise games where the motion of the player is tracked to effect movement of a virtual avatar, and the exertion of the user is monitored, including where the tracking of the player is done by use of a camera.” The suit claims that Microsoft is willfully infringing these patents, and alleges direct, inducing, and contributory infringement.

Wildcat, a Plano, TX based intellectual property holdings company has filed suit in court against a slew of game developers, including Sony, EA, Konami, Nintendo and Zynga, for alleged infringement of a patent for electronic trading cards. U.S. Patent No. 6,200,216 (the ‘216 patent), issued March 13, 2001, outlines a “system for the application of a trading card metaphor to a dissociated computer program… taking the traditional trading card metaphor and uniquely updating and enhancing it for application in consumer digital media.” The patent is not only an electronic card making application, but “the card format supports both scarcity and authenticity, which are essential to card collecting and trading, within a dissociated computer code segment.”

SocialApps, a California company that develops, posts, and maintains online social network games for sale, has sued online social gaming giant Zynga alleging copyright infringement, violation of trade secrets, breach of written contract, breach of implied-in-fact contract, and breach of confidence. SocialApps owns the copyrights and source code to "myFarm." The company’s complaint, filed in court on June 17, 2011, alleges that its direct competitor Zynga, cajoled it into sharing its source code with promises of compensation and recognition, and then ran once they got the secret.

Plaintiffs claim they invested substantial time, resources and funds to develop myFarm-- the first farming social network game that allowed players to create their own virtual farms, raise virtual produce and animals, and harvest their virtual farm goods to trade with or sell to other players. They first publicly released myFarm on Facebook in November 2008. In May 2009 Zynga approached SocialApps to acquire intellectual rights and source code for myFarm. The companies entered into a Letter of Agreement for the source code and, SocialApps was under the impression that Zynga would compensate and credit them for any use of myFarm. The complaint alleges that after Zynga got confidential source code, SocialApps never heard from Zynga again and couldn’t get in touch with them when they tried. Zynga released its own farm-based social game, Farmville on June 19, 2009. SocialApps believes Zynga, having had access to, and knowledge of, their source code then used it to create Farmville, without ever compensating them or receiving their permission.


SocialApps formally registered myFarm or its source code with the Copyright Office until June 13, 2011, shortly before filing this suit against Zynga. SocialApps asserts that Zynga deliberately sought to divert revenues from them, and that they’ve suffered damages in excess of $100,000. They are seeking permanent injunction, statutory and punitive damages, and attorney’s fees. They are also seeking Zynga’s profits and gains from Farmville since these are in excess of $500,000. SocialApps also believes Zynga is using its source code to generate other popular virtual world games like FrontierVille, CityVille and FishVille.

This case was closed on August 19, 2009. Plaintiff Gametech filed a voluntary dismissal of the case under FRCP 41(a) 1. FRCP rule 41 allows for the plaintiff to dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. In this case Grand Vision had not responded to Interlink’s suit with any court filings before Interlink filed the voluntary dismissal. Given the short space of time between filing of the suit, and its dismissal, it is likely that the parties begain settlement talks shortly after the suit was filed.

Original Post:

GameTech International, Inc. is a supplier of electronic bingo equipment, including hand-held bingo units, fixed-base units and turnkey account and management software. Tim Carson and Merle Frank apparently used to work for GameTech, but left to start their own competing company Grand Vision Gaming. GameTech alleges that the defendants took GameTech's IP when they left, including source code and other trade secrets, and GameTech filed this lawsuit on April 15, 2009, alleging copyright infringement, misappropriation of trade secrets, unfair competition, breach of duty of loyalty, and breach of contract (based on employment agreements). This appears to be a straight up software-based copyright infringement case, but we will track it nonetheless and let you know if anything interesting comes of it.

The case is 1:09-cv-00039-RFC, filed April 15, 2009, in the Billings division.

Achates Publishing, a Texas enterprise, has sued a slew of companies, including Symantec, Electronic Arts, and Valve LLC, alleging patent infringement. The patents in question are U.S. Patent Numbers 5,982,889, titled “Method and Apparatus for Distributing Information Products,” and 6,173,403, a continuation-in-part of the ‘889 patent, titled same. The patents describe methods for authenticating and activating software in a way that distributes “information products without many of the costs and restrictions associated with techniques in the prior art.”

Zynga, arguably the largest presence in online social gaming today (and who recently filed for a $1B IPO!), has sued the Brazilian social gaming company Vostu for copyright infringement of its CityVille game. According to Zynga’s complaint, Vostu’s MegaCity blatantly copies every aspect of CityVille… right down to the mistakes and bugs in the game that Zynga never got around to correcting! Zynga also alleges that Vostu exists almost solely for the purpose of copying every Zynga game down to every game mechanic, virtual item, and storyline. The complaint says “Vostu's business model is simple: copy Zynga's successful games. While imitation may be the sincerest form of flattery, the copying of valuable intellectual property rights is theft.” Zynga even submitted a side by side comparison of a number of games for which it alleges infringement in the lawsuit.

Zynga itself is no stranger to defending allegations of copyright infringement from other game developers (we recently posted on a lawsuit brought by SocialApps accusing Zynga of having copied source code for games like FarmVille and CityVille) Zynga alleges here though, that Vostu’s infringement crosses the line from “inspiration” to copying every detail of the games. Vostu, in a sharply worded response, appeared to view this as hypocrisy. According to Vostu spokesman, Davidson Goldin, “Zynga has been accused of copying so many games that they’ve sadly lost the ability to recognize games like ours that are chock full of original content and have been independently created.”

You can read more of Vostu’s public statement here. No response has yet been filed in court, but we’ll monitor the case and keep you updated.

Case Update:

When last we checked in on this case (02/08/2010), plaintiffs had survived motions to dismiss the case from both EA and the NCAA. On May 2, 2011, Judge Wilken dismissed claims that EA, along with the NCAA, conspired to avoid paying student basketball and football players for the use and sale of their likenesses in popular NCAA-themed video games. However, plaintiffs were given two weeks to amend their anti-trust allegations, and the court refused to throw out any right-of-publicity claims.

The publicity claims accuse EA of using the players' images without their permission, and the NCAA of turning a blind eye to EA's actions in order to reap substantially higher royalty rates, given the greater popularity of games showing players that look like the real student-athletes. These claims are now set to move forward into discovery.

For more details on developments on both the antitrust and rights of publicity fronts, see Law360.

Original Post:

On Monday, February 8, 2010, the U.S. District for the Northern District of California ruled on a motion to dismiss filed by Electronic Arts (“EA”), the National Collegiate Athletics Association (“NCAA”), and the Collegiate Licensing Company (“CLC”) in Keller v. Electronic Arts, Inc., Case No. 09-cv-01967-CW.

While the court granted the defendants’ motion to dismiss as to some of Keller’s claims, the court denied the motion to dismiss as to some of Keller’s claims against EA.

Keller, a former starting quarterback for the Arizona State University (“ASU”), filed this lawsuit last May against EA and the other defendants, alleging that EA used his likeness without his consent and that the NCAA enabled this use. Among the various claims that Keller asserted against the defendants is a claim against EA for alleged violations of California’s statutory and common law rights of publicity.

In this round of motions, EA argued that Keller’s claims were barred by the First Amendment and other possible defenses under California law.

As to EA’s First Amendment argument, the court stated that “[a] defendant may raise an affirmative defense that the challenged work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame. . . . The defense poses what is essentially a balancing test between the First Amendment and the right of publicity.” Slip. Op. at 6-7 (internal quotes and citations omitted).

With this standard in mind, the court determined that “EA’s depiction of [Keller] in ‘NCAA Football’ is not sufficiently transformative to bar his California right of publicity claims as a matter of law.” Slip. Op. at 9. In arriving at this conclusion, the court noted that the quarterback for ASU in the game shares many of Keller’s characteristics, as the in-game ASU quarterback wears Keller’s jersey number, has the same height and weight, and is purportedly from the same home state. Id.

In addition, in ruling that EA was not entitled to the “public interest” and “public affairs” defenses, which EA asserted under California law, the court noted that EA’s game goes beyond mere reporting of “just the players’ names and statistics; it offers a depiction of the student athletes’ physical characteristics and, as noted, enables consumers to control the virtual players on a simulated football field.” Slip Op. at 13; see id. at 13-15.

We will continue to follow this case.

Case Update:

After surviving Apple's motion to dismiss, on September 8, 2009, this case was sent to ADR. After several months of mediation, this case was fully and confidentially settled as to defendant Apple, on May 18, 2010. The case was dismissed with prejudice as to defendant Apple on July 21, 2010. As to the other two defendants named in the complaint, they never responded, and default judgments against them were entered on September 28, 2010.

Original Post:

A puzzle inventor has filed suit against Apple for allegedly using one of his puzzles as the basis for an iPhone application without authorization.

Don Rubin, dubbed by The World Almanac as “America’s premiere puzzlemaster,” contends that Apple has infringed on one of his copyrighted puzzles with its iPhone app ParkingLot. According to the complaint, Rubin created and published the original sliding block parking lot puzzle (see image at left), titled Lots of Luck, “on or before October 1, 1977” and since then came up with five derivative versions of the game. The complaint further states that the puzzle has been registered with the Register of Copyrights as a contribution to a serial publication and in various other forms numerous times since 1977. The puzzle and its authorized derivations have been published in hundreds of periodicals worldwide since its creation. Rubin asserts that his weekly puzzle column entertained 15 million readers from 20 countries per week and led to a volume of responses so overwhelming that the U.S. Post Office in Chicago “gave Don his own zip code.”

According to the grandmaster of sliding block puzzles, Edward Hordern, “[a] sliding block puzzle consists of a group of pieces of any shape(s) enclosed within a confined area, in which the purpose is to rearrange the pieces either into a certain order or to get a particular piece to a specified position. This is accomplished by sliding the pieces or “blocks” —hence the name sliding block puzzles — usually one at a time into areas not occupied by other pieces. The lifting of pieces is never allowed — nor must they hop or jump over other pieces.”

The complaint alleges that the ParkingLot application, introduced on January 1, 2008 and now one of the iPhone’s best-selling apps, copies Rubin’s puzzle “in all material respects.” Both Lots of Luck and ParkingLot are restrictive movement sliding block puzzles set in a parking lot, the complaint states. In both games, players work to move the arrangement of cars in a grid, or “parking lot,” to free a main target car so it can exit the lot.

Rubin is requesting a preliminary and permanent injunction to enjoin Apple from infringing the copyright, thus preventing publishing, selling, marketing, or otherwise disposing of copies in any format of the game. Rubin is also seeking damages from the infringement to account for gains, profits and advantages that Apple received through its use of ParkingLot.

As another piece to the puzzle (pun intended?), the complaint also names Quetouch.com as a party of interest. A quick search of Quetouch.com revealed that Quetouch is the developer of ParkingLot. According to its website, ParkingLot was “[i]nspired by Mr. Yoshigahara's invention.” After further investigation, it turns out Mr. Nobuyuki ‘Nob’ Yoshigahara, a famous puzzle columnist from Japan, was the inventor of the game Rush Hour. Both Lots of Luck and Rush Hour require a user to move car pieces backwards and forwards to clear a path for the target car to exit the grid, but Rubin’s game takes the form of a picture puzzle while Rush Hour is a physical version of the sliding block puzzle. Rush Hour, produced and marketed by Thinkfun (formerly Binary Arts), was supposedly created by Nob in the late 1970’s and introduced into the U.S. in 1996. Nob commercially licensed Rush Hour and other puzzle designs to Thinkfun. Click here to see the design patent issued to Thinkfun in 1998 regarding Rush Hour.

The blog Puzzling iPhone shows that there are many apps besides ParkingLot that are restricted movement sliding block puzzles. Perhaps Rubin focused on ParkingLot because it has earned more revenue as one of the most popular apps and that may result in him receiving larger monetary damages. The blog also mentions the issue of sliding block iPhone app developers not acknowledging the original designer of the puzzles the games are based on. But in its push for attributing credit to the real creator of the game, the site refers only to Rush Hour and Nob, not Rubin’s picture puzzle. So where did the idea for a puzzle based on maneuvering a trapped car out of a parking lot truly first originate?

All of this might not even matter, depending on where you draw the line between an idea and an expression of that idea. Copyrights only provide protection for actual expression of an idea; not to the underlying idea itself. This is rooted in the First Amendment and freedom of expression. If there was any copying, a court will likely consider whether the alleged infringer actually copied artwork and graphics, or did the alleged infringer merely use the IDEA of a sliding block puzzle in the theme of a parking lot, yet create new artwork and source code to implement that IDEA? Also keep in mind that copyrights provide NO protection for functional or utilitarian aspects of works, so the plaintiff will have a hard time relying on any similarity of rules, placement of vehicles, possible moves, etc., because those are likely to be considered functional considerations.

Read the full complaint, which includes an example of Rubin’s puzzle, here.

Back in 2009, Microsoft issued a remote update that stopped third-party accessory maker, Datel’s, memory cards from working on Xbox consoles. These cards are used to store game data when gamers play online. Microsoft sells its own line of data cards for Xbox. Datel sued and in its complaint alleged that Microsoft’s actions were anticompetitive because the disabling of the cards was intended “to perpetuate Microsoft’s market power.” Microsoft response countered that its actions were protected by the Digital Millennium Copyright Act because Datel’s memory cards were circumventing an Xbox memory card authentication sequence—a sequence that allows limited access to copyright game data such as gamer profiles and Xbox Live achievements.

Square Enix has filed a new lawsuit against unknown Italian individuals who infiltrated its preview of the new “Deus Ex: Human Revolution” game, downloaded the game, and distributed the preview to third parties.

Take-Two Interactive Software, Inc. v. Apogee Software, Ltd.
United States District Court for S.D.N.Y.
Case No. 1:2009-cv-05054, Filed May 11, 2009

Case Update:

This case was dismissed with prejudice on May 28, 2010, pursuant to a confidential settlement agreement by the parties. The parties agreed to bear their own costs of litigation, and not to seek any costs or sanctions.

Original Post:

Take-Two is a publisher, developer and distributor of video game software, hardware and accessories for PCs and game consoles including the Grand Theft Auto series.

Apogee, also known as 3D Realms, develops and publishes video games such as the Duke Nukem franchise.

In 2000, Take-Two entered an agreement giving it publishing and distribution rights to Duke Nukem Forever (DNF), a game that began development in 1997. Take-Two claims to have paid $12 million for those rights. Take-Two and Apogee formed another agreement in 2007 under which Take-Two advanced $2.5 million to Apogee to aid in development. According to Take-Two, the agreement guaranteed the game would be done by 2012, otherwise the advance would immediately become due.

In early 2009, Take-Two informed Apogee it wanted to exercise an option to develop a console version of DNF for Xbox 360 and wanted Apogee to do that development. Apogee insisted that Take-Two provide the funding for the project, but Take-Two was wary of putting more money into development and so proposed various funding/development milestones. Apogee rejected the proposal and negotiations came to a standstill.

Take-Two claims Apogee consistently gave assurances of near completion but then shut down its studio, halted development on DNF and laid off its staff on May 6, 2009 without Take-Two’s approval. Take-Two further alleges that Apogee has sufficient funds to cover its outstanding obligations in an off-shore account.

Take-Two brought this lawsuit against Apogee for breach of contract related to Apogee’s alleged continual delays and failure to complete the game. To hammer home the effect of the delays, the complaint states that “[t]he protracted development of the game was well-publicized and became the subject of ridicule. For example, in a 2007 article entitled, ‘The Most Delayed Games Ever,’ an industry columnist remarked that ‘[elither this is the longest game ever in production or an elaborate in-joke at the expense of the industry.’” Take-Two seeks to recover its advances and to have Apogee deliver the source and object code already developed (to independently develop the game for Xbox 360) and wants Apogee's cooperation in future endeavors to finish the game. Take-Two also wants to enjoin DNF developers from further leaking any art or code from the game which Take-Two says interferes with its “exclusive rights to publish, exploit and control the DNF brand.”

Shacknews reports that after the lawsuit was filed, Apogee founder Scott Miller said, “Do readers here realize that filed lawsuits are entirely one-sided statements, based on knee-deep BS and with more spin that[sic] a top? 3DR has been in nearly a dozen lawsuits (including against Warner and Fox). We're always innocent, and we always win. This one is no exception. Give it a year, then the truth will come out.”

In response to Take-Two's suit, Apogee filed an answer and counterclaim on June 19. In its answer, Apogee states the development of DNF was largely self-funded and that the company invested $20 million of its own money. Apogee claims DNF had no deadline for completion. According to the answer, the option to develop DNF for Xbox 360 only becomes exercisable after the release of the PC version which hasn’t occurred, so Take-Two allegedly has no right to the source code until the game is completed. Apogee’s answer also mentions that Take-Two’s advance would be paid back with royalties Apogee would receive from a new Duke Nukem-based game supposedly also in development by another developer and due by 2010. Apogee claims Take-Two knew for weeks that the DNF team would be laid off if a funding agreement wasn’t reached.

Apogee brought a counterclaim against Take-Two for breach of contract. Apogee claims that in the 2007 agreement, Take-Two agreed to hire a third-party developer to create a new game based on the Duke Nukem franchise (“Duke Begins”). Apogee retained development approval rights, including right to approve the development schedule. Apogee’s counterclaim echoes Take-Two’s complaint in that Take-Two was entitled to royalties from Duke Begins to recoup the advance it paid. Apogee claims Take-Two halted the third-party developer's work on Duke Begins indefinitely in April 2009 in order to delay its release, limiting Apogee’s ability to pay back Take-Two’s advance on time. The counterclaim alleges that Take-Two is “taking such actions with a goal of pressuring Apogee to sell the Duke Nukem franchise rights to Take-Two for less than their true value.” Apogee is seeking monetary damages.

So it appears that twelve years after first announcing the development of Duke Nukem Forever, the game still faces many hurdles and may never be completed. Still, in Apogee’s answer it alleges “that it has continually worked on the development of the DNF for many years, and continues to do so" - signaling that development is ongoing, but with only the few DNF team members remaining. Given that Wired News created the Vaporware Lifetime Achievement Award exclusively for DNF, maybe fans shouldn't hold their collective breath.

It’ll be interesting to see how this one plays out and whether DNF or Duke Begins will ever come to fruition. We’ll keep you posted.

The case was initially filed in state court in the Supreme Court of New York on May 12, but was transferred to the U.S. District Court for the Southern District of New York on May 29.

Read Take-Two’s complaint here and Apogee’s counterclaim here.

Case Update:

This case was dismissed on November 18, 2010. On January 8, 2010, the court referred this case to mediation. After several months in ADR, Zynga filed for voluntary dismissal of the case under FRCP 41(a). Rule 41(a)(1) allows for the plaintiff to dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.

Original Post:

We recently wrote about Zynga, the developer of online social games, bringing a claim in the beginning of June against John Does 1-5 because of the defendants’ use of a domain name that allegedly infringed on Zynga’s trademark. Zynga has filed a similar suit, this time against Playdom for trademark infringement of one of Zynga’s most popular games, Mafia Wars. Playdom is also a social gaming company with its game Mobsters being the top game on MySpace.

According to the complaint, on June 12, 2009, one of Zynga’s employees came across an advertisement on Facebook that was marketing Playdom’s game Mobsters using the Mafia Wars trademark. The advertisement in controversy says in large text: “Like Mafia Wars?” and beneath that shows a picture of a gangster with small text saying: “Click here to play Mobsters. Its [sic] got henchmen, mini games, message boards and sophisticated style.” The complaint states that the ad doesn’t display the Playdom name or trademark and doesn’t make clear whether the ad is for Mobsters or Mafia Wars. If a user clicks anywhere on the ad, including on the name Mafia Wars, a window opens to install the Mobsters game, but nowhere is the Playdom name or trademark shown. Zynga apparently contacted Playdom after learning of the ad and asked them to stop using the Mafia Wars trademark. Playdom changed the ad to say “Like Mafia Games?” for some period of time but then changed it back to the original and has refused to take it down.

Zynga alleges that the ambiguity of the ad may cause users confusion about which game is being advertised and may lead users to believe that Zynga endorses or sponsors Playdom. The complaint states that Playdom has intentionally acted to deceive the public and divert business away from Zynga. Zynga claims relief for Trademark Infringement, False or Misleading Designation of Origin, and False Advertising under the Lanham Act as well as False Advertising and Unlawful Business Practices under the California Business & Professions Code. Zynga is seeking an injunction to stop Playdom’s use of its trademark, “corrective advertising to dispel the confusion” created by use of the trademark, and a monetary award for lost profits and Playdom’s “ill-gotten” gains.

Read the full complaint here.