Stephen S. Wu-- SL: Legal Writer,, (408) 573-5737, 50 W. San Fernando St., Ste. 750, San Jose, CA 95113

Report on Playfish v. Rackspace Complaint

On September 14, 2009, London social gaming company Playfish, Ltd., sued San Antonio-based hosting company Rackspace Hosting, Inc. and GosuMall Digital Entertainment, a Singapore company, which is an online seller of virtual game items. The Complaint alleges that GosuMall is selling trademarked in-game items from Playfish's Pet Society game, in violation of Playfish's Terms of Service. Click here for a copy of the Complaint. As of today, the GosuMall Pet Society web page is still offering in-game items for sale.
Playfish filed its Complaint in the United States District Court for the Western District of Texas in San Antonio. Playfish's Complaint contains causes of action for copyright infringement, false designation of origin, common law trademark infringement, Texas common law passing off and unfair competition, dilution and injury to business reputation, breach of contract, and intentional interference with contractual relations. The Complaint seeks injunctive relief and unspecified damages. The Defendants have not yet responded to the Complaint.

The Playfish Terms of Service specifically state that Pet Society users may not buy or sell "game assets," which include characters, items, currency, "coins," and other "virtual in-game items." Playfish accuses GosuMaill of selling in-game items to purchasers on its website. Playfish claims that GosuMall personnel are logging on to Pet Society and transferring virtual goods sold on its website to the purchasers of items from its website. Playfish contends that GosuMall Pet Society users are thereby violating its Terms of Service and by selling items to other Pet Society players, GosuMall is causing these other players to violate their contractual obligations to Playfish under the Terms of Service. Playfish's arguments imply that by acting outside of the license limitations in the Terms of Service, GosuMall is not only breaching its contractual obligations to Playfish, it is copying and using the Playfish software in violation of Playfish's copyright rights.

Playfish alleges that it sent DMCA takedown notices to Rackspace identifying the GosuMall Pet Society Webpage, and Rackspace failed to act to take down the allegedly infringing content. Accordingly, Playfish's copyright and trademark claims are directed at Rackspace, as well as GosuMall. The Complaint states that the webpage was offline for one day after Playfish sent the takedown notice, but that it reappeared again at a new URL after two days.