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

Playfish v. Rackspace Case Dismissed

Back in September 2009, Playfish, Ltd., since acquired by Electronic Arts, sued San Antonio-based hosting company Rackspace Hosting, Inc. and GosuMall Digital Entertainment, a Singapore company, alleging that GosuMall was selling trademarked in-game items from Playfish's Pet Society game, in violation of Playfish's Terms of Service. Over the summer, the Court dismissed the case for plaintiff’s failure to pursue the suit.
Playfish v. Rackspace offered the opportunity to see litigation arising from metagaming and the effectiveness of litigation following on the heels of a Digital Millennium Copyright Act takedown notice. Playfish had sent a takedown notice to Rackspace to try to remove the content that allegedly infringed its marks. Game companies seeking to maintain control over their game environments and ensure a level playing field for competitive games could look forward to seeing whether the lawsuit would provide a way for the company to enforce its terms of service.

For whatever reason, however, Playfish never pursued the suit. Perhaps Electronic Arts decided not to pursue the matter. In any case, Playfish failed to report to the Court that it had delivered the summons and complaint on the defendant. Since the defendant had never been served, it did not appear in the case. That is, neither party participated in the suit after the initial filings.

In the process of cleaning up its document, the Court apparently noticed that Playfish never served its Complaint on the defendants. It issued an Order to Show Cause why the complaint should not be dismissed for “lack of prosecution.” When Playfish did not respond, the Court entered judgment and dismissed the Complaint without prejudice.

Thus, the case of Playfish v. Rackspace ends not with a bang, but a whimper. I will close the chapter on this case in these pages. And I will regret that we did not see a reported decision or verdict in what promised to be a fascinating case.