Intellectual Property
Electronic Arts Sues Zynga for Copyright Infringement
08/16/2012 15:28
Earlier this month, Electronic Arts sued Zynga for copyright infringement in the United States District Court for the Northern District of California. The case concerns EA’s online game called “The Sims Social,” which is offered on the Facebook platform. Zynga has a competing Facebook game called “The Ville.” EA alleges that the The Ville is a clone of The Sims Social. EA’s complaint alleges only a single claim -- copyright infringement. For a copy of the complaint, click here. Read More...
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Bethesda Softworks Loses Fallout Case
12/11/2011 21:22
It isn’t very often that a video game case ends up in a decision of a federal appellate court. So, I read with some interest the recent (unpublished) decision in Bethesda Softworks, L.L.C. v. Interplay Entertainment Corp., No. 11-1860, 2011 WL 5084587 (4th Cir. Oct. 26, 2011) (per curiam). Bethesda had feuded with Interplay concerning trademark issues in a couple of federal district court opinions. The appellate decision, however, concerned Bethesda’s copyright claims against Interplay. Bethesda had sought a preliminary injunction against Interplay, lost in the district court, and took an immediate appeal. The court of appeals affirmed. The court of appeals’ decision concerned the standard for preliminary injunctive relief and emphasized that irreparable harm to the copyright owner cannot be presumed merely because of a likelihood of success on the merits. Read More...
Blingville v. Zynga Update
09/28/2011 22:12
In January, a company called Blingville, LLC filed a preemptive suit against Zynga in the Northern District of West Virginia. Blingville filed the suit as a defensive move to claim that its use of the mark BLINGVILLE for a game does not violate Zynga’s trademark rights. I wrote about the complaint earlier this year. What has happened to the case since the complaint? Not a whole lot has occurred, although some recent filings shed light on the status of the case. Right now, the parties are in the discovery process of gathering and exchanging information. The parties anticipate the case will be ready for trial in June 2012. Read More...
Eros v. Linden - Case Closed
05/09/2011 10:11
Without much fanfare, the Eros v. Linden Research case closed quietly in March 2011. Two named plaintiffs filed this putative class action, Eros, LLC and Shannon Grei, both of whom offer products on the Second Life® virtual world. The plaintiffs contended that Linden Research did not do enough to protect their intellectual property rights, and in fact had profited from infringements. In March, Eros and Grei both filed stipulated dismissals of their claims with prejudice, which means that they cannot later refile their action. Apparently, the parties entered into a settlement, and the plaintiffs dismissed their action in carrying out the settlement. Read More...
Apple Files Suit Against Amazon Over APP STORE Mark
04/15/2011 17:34
In March 2011, Apple filed a trademark infringement lawsuit against Amazon, claiming that Amazon is infringing on Apple’s APP STORE mark. Apple alleges that Amazon is in the process of launching its own application store using the APP STORE mark. Apple’s complaint, filed in the U.S. District Court for the Northern District of California, states that it is seeking preliminary and permanent injunctive relief, as well as damages. Read More...
When Do Violations of Terms of Use Give Rise to a Software Copyright Claim?
03/17/2011 18:47
Last December, the Ninth Circuit decided MDY Industries, LLC v. Blizzard Entertainment, Inc., which discussed, among other things, the circumstances under which a user’s violation of an online software application company’s terms of service can constitute copyright infringement. In February, the court amended its opinion by adding a footnote. 628 F.3d 928 (9th Cir. 2010), amended and superseded and reh’g denied, 2011 WL 538748 (9th Cir. Feb. 17, 2011). For a copy of the amended opinion, click here.
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Blingville FIles Preemptive Suit Against Zynga
01/24/2011 19:54
After receiving three cease and desist letters from FarmVille maker Zynga Inc., game maker Blingville, LLC filed a preemptive suit against Zynga in federal court in West Virginia on January 14, 2011. Zynga’s letters took the position that the company had trademark rights in the suffix “ville” when used with game names. Zynga’s games include not only FarmVille, but also CityVille, FishVille, FrontierVille, PetVille, and YoVille. Blingville seeks a declaration that its BLINGVILLE mark does not constitute trademark infringement. For a copy of the complaint, click here. Read More...
The Price of Piracy
12/08/2010 17:46
The price of a little piracy can be rather steep, as proved in a recent California case. Blizzard Entertainment recently won an $88.5 million judgment against a woman running a business called Scapegaming that allowed players to play Blizzard’s World of Warcraft game without paying for it. Blizzard obtained the judgment in September in a case entitled Blizzard Entertainment, Inc. v. Alyson Reeves, d/b/a Scapegaming, No. CV 09-7621 SVW (AJWx), pending in the United States District Court for the Central District of California. For a copy of the order fixing the amount of damages, click here. For a copy of the judgment, click here. Read More...
Playfish v. Rackspace Case Dismissed
10/20/2010 06:37
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. Read More...
Eros v. Linden Research Update
09/28/2010 16:41
The Eros v. Linden Research case has been quiet over the summer, with few filings. The most important recent development in the case concerns the status of the case as a class action. The plaintiffs apparently decided not to try to certify the case as a class action, proceeding instead on the individual claims of the named plaintiffs. The Court has also held a number of case management conferences in the matter. Read More...
Virtual Property Suits in a Holding Pattern
04/06/2010 22:41
I have been following the Playfish v. Rackspace case since the complaint was filed and the initial filings in the Eros v. Linden cases, but both seem to be in a holding pattern. Both cases involve important issues, and I hope to see some arguments on the substantive law from both cases. Read More...
All Quiet in Playfish v. Rackspace
02/08/2010 21:22
I recently checked the docket again in the Playfish v. Rackspace case. See the post here concerning the filing of the complaint in that case last fall. The case has seen no filings, except for one, since the first month of the case, although the docket would not show some of the evidence gathering the parties may be conducting at the moment. Nonetheless, the parties should be undergoing the case management process, which should yield some filings. Consequently, there is some chance the parties are trying to settle the matter, or it has not been in Playfish’s interest to pursue it. Read More...
Eros v. Linden Update
01/30/2010 16:26
The Eros v. Linden suit appears to have been relatively quiet since the Lindens answered the Eros complaint in November. The most important development to report is the fact that the parties are moving forward with discovery and held a meeting to work out discovery and case management issues. They filed a case management statement reporting the results of their meeting. For a copy of the statement, click here. Read More...
Are Patent Damages as Fictional as Second Life?
01/12/2010 20:20
A recent federal court decision in Rhode Island mentioned Second Life, but not in the context of adjudicating a virtual worlds intellectual property dispute. Instead, the court compared a reasonable royalty calculation of patent damages to Second Life® virtual world, saying that they both are “make believe.” Uniloc USA, Inc. v. Microsoft Corp., 632 F. Supp. 2d 147, 150 (D.R.I. 2009). Read More...
Playfish to be Acquired by Electronic Arts
11/10/2009 13:31
Electronic Arts announced that it will acquire Playfish, which has been pursuing a suit against San Antonio-based hosting company Rackspace Hosting, Inc. and GosuMall Digital Entertainment, a Singapore company. Playfish alleges that GosuMall is selling in-game items in an alleged violation of the Playfish terms of service, and that Rackspace is liable as well for hosting the GosuMall website at which it is selling the products. Read More...
Lindens Answer the Eros, LLC Complaint
11/06/2009 16:22
On October 30, 2009, Linden Research, Inc. and Linden Research International, Inc. filed an answer to the Complaint asserted against them by Eros, LLC and Shannon Grei in the Northern District of California. The Lindens had the option of filing a motion to test the legal sufficiency of the Complaint, move the Court to dismiss for some other reason, or answer the Complaint. And the Lindens chose to answer the Complaint (without filing a counterclaim against the plaintiffs). Read More...
Report on Playfish v. Rackspace Complaint
10/23/2009 15:20
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. Read More...
IP Megasuits Presentation at the Digital Law Conference
09/24/2009 10:07
Yesterday, I gave a presentation at the Digital Law Conference on the topic of IP Megasuits, comparing the new Eros v. Linden case to the Viacom v. YouTube and Google case. Eros asserted direct and secondary copyright infringement, trademark infringement, and related state law claims against Linden Research, which operates the Second Life® virtual world. I posted the handout and PowerPoint slides on this site’s IP Megasuit Presentation page. Please write me at swu@ckwlaw.com if you would like to follow up on any questions you have about the program materials. Read More...
Intellectual Property Megasuit: Could It Happen to You?
09/22/2009 22:49
Tomorrow, September 23, I will be giving a presentation at the Digital Law Conference in San Jose, CA, entitled “Intellectual Property Megasuit: Could It Happen to You?” Read More...
Breaking Story - Eros, LLC Sues Linden Research
09/15/2009 20:11
Eros, LLC, a seller of virtual adult products in the Second Life® virtual world, filed a class action suit today against the operator of Second Life®, Linden Research, Inc., in the federal district court in San Francisco. KamberEdelson, LLC is the law firm representing Eros and the other named plaintiff, Shannon Grei (SL: Munchflower Zaius). The Complaint contends that Linden is infringing upon the plaintiffs’ trademarks and Grei’s copyrights directly, as well as facilitating and profiting from the infringements of others. The plaintiffs seek unspecified damages, as well as injunctive relief. Read More...
Minsky Case Settles
02/09/2009 20:31
On January 22, 2009, U.S. District Judge Lawrence E. Kahn signed an order dismissing Richard Minsky’s case involving alleged trademark infringement in Second Life. According to the Albany federal district judge’s order, Magistrate Judge David R. Homer reported to the Court that the parties had settled their case. Accordingly, Judge Kahn dismissed the case. The dismissal brings to an end the suit involving alleged infringement of Mr. Minsky’s SLART federally registered trademark. Read More...
New Confideniality Stipulation in Richard Minsky's Lawsuit
01/17/2009 20:47
On January 15, 2009, Richard Minsky and Linden Research agreed to a stipulation regarding the treatment of confidential information exchanged during the discovery process in their Second Life trademark infringement case. Judges routinely sign stipulated orders of this kind to allow the parties to exchange confidential information in the course of discovery while protecting the confidentiality of the information exchanged. Otherwise, the docket reveals little activity during the holiday season. A copy of the stipulation appears on the Minsky v. Linden Research documents page.
Richard Minsky Appeals Order Denying Relief
12/26/2008 20:36
On December 18, 2008, Richard Minsky appealed the December 8 order in his Second Life trademark infringement case denying Mr. Minsky’s motion regarding Linden Research’s compliance with the temporary restraining order (TRO) in the case. Mr. Minsky contended that Linden Research failed to comply with the TRO, but the magistrate judge disagreed. Mr. Minsky now seeks to have the district judge on the case overturn the magistrate judge’s order. Read More...
Update on Minsky Trademark Infringement Suit
12/10/2008 22:07
Since my last blog entry concerning Richard Minsky’s Second Life trademark infringement case, Mr. Minsky asked the Court to drop the John Doe defendant -- an avatar named Victor Vezina -- from his case. The Court granted Mr. Minsky’s request on December 3, 2008. In addition, on December 8, 2008, the Court denied Mr. Minsky’s motion regarding Linden Research’s compliance with the temporary restraining order in the case. Read More...
Minsky Spars with Rosedale and Kapor over Alleged Fraud in Minsky's Second Life Trademark Infringement Case
11/25/2008 21:30
In the past two weeks, Linden Research Chairman Philip Rosedale and former Chairman Mitch Kapor continued to spar with Richard Minsky in federal court filings concerning the fraud claims asserted against them by Mr. Minsky. Mr. Minsky brought his action against Rosedale and Kapor, as well as Linden Research, to claim infringement of his federally registered trademark SLART. Rosedale and Kapor recently filed a reply brief in support of their motion to dismiss the fraud claims against them, and Minsky’s filing is an additional reply in opposition to their motion. Read More...
Richard Minsky Opposes the Motion to Dismiss in His Trademark Infringement Case Concerning Second Life
11/09/2008 21:42
This past week, Richard Minsky opposed the motion to dismiss his fraud claims against Linden Research Chairman Philip Rosedale, and former Chairman Mitch Kapor. Rosedale and Kapor are defendants in Minsky’s case, in which he asserts his rights to the federally registered trademark SLART against Linden Research. Rosedale and Kapor sought dismissal of the fraud claims against them, and Minsky’s opposition seeks to keep the fraud claims in the case. I expect Rosedale and Kapor to file a reply brief in support of their motion, after which Judge Lawrence E. Kahn will rule on the motion. Read More...
Judge Enters Preliminary Injunction in the Minsky Second Life Trademark Infringement Case
11/03/2008 10:20
Last week, Judge Lawrence E. Kahn signed a stipulated preliminary injunction in the Second Life trademark infringement case brought by Richard Minsky against Linden Research. Under the stipulated order, the Court converted the temporary restraining order (TRO) in place in the case to a preliminary injunction. The defendants in the case are Linden Research, two of its principals, and an anonymous avatar named Victor Vezina. Mr. Minsky’s suit claims infringement of his federally registered trademark SLART. The purpose of a preliminary injunction is to hold the status quo in place during the pendency of a case. The preliminary injunction will likely remain in effect until the case is resolved. Read More...
Linden Research and Richard Minsky Agree on a Preliminary Injunction in their Second Life Trademark Infringement Case
10/27/2008 15:29
Last week, Richard Minsky and Linden Research agreed to convert the temporary restraining order (TRO) in place in their trademark infringement case to a preliminary injunction. Mr. Minsky had sued Linden Research, two of its principals, and an anonymous avatar named Victor Vezina claiming infringement of his federally registered trademark SLART. It is now up to Judge Lawrence E. Kahn to sign the proposed order converting the TRO to a preliminary injunction. I expect Judge Kahn to sign the order, since judges typically abide by the parties’ wishes on pretrial proceedings and encourage collaboration and settlement. Once that order is in place, it will likely remain in effect until the case is resolved. Read More...
Fairly Quiet Week for the Minsky SLART Second Life Trademark Infringement Case
10/20/2008 11:11
Last week was a fairly quiet one for the trademark infringement case brought by Richard Minsky. Mr. Minsky filed a reply letter brief in further support of his letter motion essentially seeking a declaration that Defendant Linden Research has failed to comply with the temporary restraining order (TRO) in the case. Linden Research asked the Court to strike Mr. Minsky’s reply brief from the record, saying that the Court’s dispute resolution procedures set forth in the TRO do not permit reply briefs. Mr. Minsky is known as ArtWorld Market on Second Life and claims ownership in the registered trademark SLART used with his art magazine. He sued Linden Research, some of its principals, and an anonymous avatar named Victor Vezina claiming infringement of his SLART mark. Read More...
Defendants Respond in the Minsky SLART Trademark Infringement Case Concerning Second Life
10/11/2008 13:07
This past week, the defendants in the Minsky trademark infringement case responded with a number of their own court filings. Richard Minsky had filed a trademark infringement lawsuit last summer against Linden Research, an avatar named Victor Vezina (named as a John Doe defendant), Linden Chairman Philip Rosedale, and former Chairman Mitchell Kapor in Albany’s federal court. Mr. Minsky is known as ArtWorld Market on Second Life and claims ownership in the mark SLART used with his art magazine. Richard Minsky’s recent letter brief claimed non-compliance with the temporary restraining order in place. Linden Research defended its conduct in its own letter brief. In addition, Kapor and Rosedale asked the Court to dismiss the claims against them. Finally, Linden Research filed an answer and counterclaims document denying Mr. Minsky’s allegations, asserting a number of defenses, and seeking its own relief in a counterclaim that includes infringement and cancellation claims. Linden Research contends that Mr. Minsky infringed upon its SECOND LIFE and SL marks. Read More...
Minsky SLART Cancellation Proceedings Suspended
10/09/2008 22:16
On October 2, 2008, the Trademark Trial and Appeal Board suspended the proceedings instituted by Linden Research, Inc. against Richard Minsky to cancel his SLART trademark used with his art magazine. The Board’s suspension effectively stops Linden Research from doing an end run around the federal lawsuit Mr. Minsky filed against Linden Research and others in the United States District Court for the Northern District of New York. The previous day, counsel for Mr. Minsky had filed a motion requesting the suspension, and the Board agreed that suspension was appropriate, citing a regulation permitting suspension of a Board proceeding in the event a civil suit would have a bearing on it. Read More...
Minsky v. Linden Research Letters
10/05/2008 17:11
This past week, both Richard Minsky and defense counsel sent letters to one of the Albany federal court judges presiding over his SLART trademark suit against Linden Research, an avatar named Victor Vezina (named as a John Doe defendant), Linden Chairman Philip Rosedale, and former Chairman Mitch Kapor. Mr. Minsky sent a letter to Magistrate Judge David R. Homer, while defense counsel’s letter went to District Judge Lawrence E. Kahn. Read More...
Parties Moving Closer Together in Minsky Case
09/29/2008 15:45
On September 29, 2008, counsel for Linden Research and other defendants sent a letter to Albany federal court Judge Lawrence E. Kahn announcing an “agreement in principle” with Richard Minsky regarding part of the case Mr. Minsky brought against Linden Research: whether or not the Court should issue a preliminary injunction. A preliminary injunction preserves the situation the parties face while a case is pending, but is not a final resolution of the case. Therefore, this “agreement in principle” does not portend an imminent settlement of the entire case, although it is a sign of open communications among the parties that may lead to an eventual settlement. The defendants apparently are agreeable to converting the existing temporary restraining order into a preliminary injunction, thereby avoiding what appeared to be an expensive showdown on the motion for preliminary injunction with Mr. Minsky. Read More...
Briefing Schedule Set on Minsky Trademark Case
09/21/2008 21:16
On September 16, 2008, a federal judge in Albany, NY, Judge Lawrence E. Kahn, signed an order setting up the preliminary injunction showdown between Richard Minsky and Linden Research. Minsky, whose SL avatar is ArtWorld Market, is seeking a preliminary injunction restraining the Lindens from infringing upon his U.S. Trademark SLART. A hearing is set on the preliminary injunction for December 3, 2008. Plaintiff Richard Minsky’s opening brief is due on October 30, the Defendants’ brief is due November 5, and Minsky may serve a reply brief no later than November 10. Read More...
Defendants Seek to Dissolve Minsky Restraining Order
09/14/2008 15:30
The defendants in the Minsky v. Linden Research case entered their appearance in Court this week and sought to dissolve the temporary restraining order entered against them on September 4, 2008. The Court will create a schedule for briefing and a hearing on whether the Court should issue a preliminary injunction against the defendants during the case. Mr. Minsky filed a reply in support of his motion for temporary restraining order and preliminary injunction. In the end, the Court entered a modified temporary restraining order pending the preliminary injunction hearing. The TRO implements a trademark take down procedure by which Mr. Minsky can continue to bring infringements to the attention of the Lindens for action. Read More...
Trademark Infringement Presentation
09/13/2008 22:41
On September 9, 2008, I gave a presentation entitled “Trademark Infringement in Virtual Worlds” at the SL Bar Association in Second Life.” I gave an excerpt from the presentation the following day at a Bar Association of San Francisco program entitled “Hot Topics in Business & Technology Law.”
Trademark infringement is widespread in Second Life and costs retailers millions. Although the amount of money lost in virtual worlds is small in comparison to the entire retail market, brand owners that fail to “police” their marks by pursuing infringers may lose the ability to enforce their trademark rights in the future. The presentation discussed the basics of trademark law, the significance of the virtual worlds infringement problem, the reasons why increasing infringement and the passage of time may erode the value of a trademark, and what owners can do to combat infringement. For a copy of the slides from the presentation, click here.
Minsky v. Linden Research Update
09/09/2008 06:42
On July 29, 2008, artist and art critic Richard Minsky filed suit against against Linden Research, an avatar named Victor Vezina (named as a John Doe defendant), Linden Chairman Philip Rosedale, and former Chairman Mitch Kapor in Albany’s federal court. Mr. Minsky’s avatar in SL is ArtWorld Market, and he is attempting to enforce his SLART trademark used with his art magazine. He filed an amended complaint on August 14. I posted the court documents about the case on my Minsky v. Linden Research documents page. Mr. Minsky obtained a temporary restraining order against the defendants, prohibiting them from infringing on his mark. A hearing to determine if the court should issue a preliminary injunction will take place tomorrow. Read More...
Presentation on Trademark Infringement in Virtual Worlds
09/08/2008 15:39
I will be giving a talk in SL tomorrow on Trademark Infringement in Virtual Worlds before the SL Bar Association at its offices, noon PDT/SLT. You can register for the talk by going to the registration page. Read More...