For one thing, the burning of Atlanta would seem out of place.
This Western District of Washington case has a common fact pattern: plaintiff’s and defendant’s computer games are similar in the sense that the ‘gameplay’ (the rules of the game), is very similar, but the ‘skin’ (the setting and characters and interface) are different. Gameplay is not protectable. However, as the Court notes:
A video game, much like a screenplay expressed in a film, also has elements of plot, theme, dialogue, mood, setting, pace, and character. Spry Fox took the idea underlying Triple Town and expressed it with its own characters, its own setting, and more. These objective elements of expression are within the scope of Spry Fox’s copyright.
Some of Spry Fox’s expressive choices are not protectable because they are scènes à faire in many video games (and often in games in general). For example, the use of points and “coins” to reward a player’s progress through a game is standard.
So far, so good. Then we get to this sentence:
“. . . the object hierarchy coupled with the depiction of the field of play comprise a setting and theme that is similar to Triple Town’s. A snowfield is not so different from a meadow, bears and yetis are both wild creatures, and the construction of a “plain” is not plausibly similar to the construction of a “patch””
I concur with Prof Goldman that this sentence is, uh, unclear. Also, the Court notes that (1) the name YETI TOWN is similar to TRIPLE TOWN; and that (2) that alleged similarity is relevant to a copyright analysis, is also, uh, interesting.
And now, from our perhaps not so instructive ‘put another way’ department. The Court notes:
There are apparent differences between games (for example, yetis are not bears and “bots” are not campfires), but a court must focus on what is similar, not what is different, when comparing two works. Put another way, a writer who appropriates the plot of Gone with the Wind cannot avoid copyright infringement by naming its male protagonist “Brett Cutler” and making him an Alaskan gold miner instead of a southern gentleman.
Yes, if in someone else’s novel a Southern gentleman and a scallawag fight over a Southern belle, against the backdrop of the Civil War, then small differences such as name changes would not avoid infringement. However, if a gentlemanly Alaskan miner fought a rakish miner over an Alaskan belle against the backdrop of, uh, some big event in Alaska, then I’m not so sure. The characters and plot of GWTW are intertwined with the time of the Civil War to the point that I suspect that the setting change would force the plot and characterization to a level of abstraction that would probably avoid infringement. Unless the author insisted on having the Eskimo maid say ‘I don’t know nothing ’bout birthin’ no babies.’ My point is merely that the example doesn’t really illustrate the Judge’s point.
VOGUE Magazine sent a ‘blank’ complaint (an unsigned unfiled complaint) to VOGUEVERT on Sept. 5 (VOGUEVERT uses the mark for a site selling luxury items. VOGUEVERT files a DJ action on Sept. 21.
A Regent is a common name for a member of a governing Board of a public education system. California and NY have Boards of Regents, as does Georgia. In my household, The Regents refer to the standardized test middle and high schoolers have to take in June.
Chipotles are smoked jalapenos. CHIPOTLE GRILL is a chain (that I think is quite good). Jack in the Box sells a Chipotle Sandwich (which has a CHIPOTLOAD of flavor).
THEREFORE I WILL FILE A TRADEMARK APPLICATION FOR YOU COVERING 'FORTY SEVEN PERCENT' AND VARIANTS THEREOF.
When is a decorative element of a product trademark use, and when is it descriptive fair use? Does the shirt depicted above signify BORN TO ROCK as the source of origin, or is it just one more trite slogan?
Plaintiff owns an incontestable registration for BORN TO ROCK for guitars, and a recent registration for the same mark for shirts. It received an ornamental objection when filing for the shirt application, which it overcame by showing ownership of the guitar registration and non-ornamental use of the mark on guitars. (See TMEP 1202.03)
Cafe Press sells online items bearing user-created designs, which it affixes to items such as shirts and mugs. Third parties (many third parties) sold shirts with variations of the BORN TO ROCK slogan as part of the ornamentation. Plaintiff protested. Cafe Press declined to stop sales. Plaintiff sued. Cafe Press moved for summary judgment, arguing that its use was descriptive fair use.
Held: Based on a record that appeared to contain only depictions of the designs but apparently not screen shots of Cafe Press’ website (see page 14 of the decision), the Court notes that looking at some of the designs “. . . there is no potential source identifier other than the words that constitute BTR’s mark’ and thus ‘ a reasonable juror could conclude that the use of the phrase “Born to Rock” was intended to identify BTR as the source . . .”
Motion for summary judgment denied.
Now, I couldn’t find any BORN TO ROCK shirts on Cafe Press today. I did go to Zazzle and the webpages for its ‘Born to Rock’ shirts, bear the ZAZZLE mark and identify the brand of the shirt and the vendor of the shirt. Also, the decision noted that Cafe Press asked the court to consider all BORN TO ROCK designs. Some designs did bear other sources (such as WhatAreYouApparel.com) in the design itself.
An upshot – prospective clients call me every so often in an attempt to get exclusive rights to the hot catchphrase of the day. I imagine that people are trying to sew up the rights to FORTY SEVEN PERCENT even as we speak. I then go into my spiel about ornamental use vs trademark use, and how ownership of the trademark wouldn’t prevent true descriptive use of the phrase. And by the time the registration matures, the phrase won’t be that hot anymore.
I think that there may be some case-specific oddities here with regard to the evidence before the court, but others things being equal, the ‘catch-phrase’ registrations was summary-judgement proof this time around.
WICKED FITNESS chain v WICKED FIT reality TV show.
VIDYO v VIDYOO for teleconferencing services.