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The San Francisco Chronicle ran a nice article today about virtual law, including quotes from yours truly. The high point (at least in MY opinion):

But some attorneys set up virtual offices in the world as a kind of advertisement. Intellectual property specialists Banner & Witcoff did just that, and their virtual presence led to their attorney Ross Dannenberg representing one of the highest-profile virtual law cases so far.

Like the sex bed case, the Sailor's Cove case was not unlike many real-world disputes: It was an ownership conflict based on an alleged oral contract.

Dannenberg represented two users who assisted a virtual real estate developer in running a large group of islands in Second Life called Sailor's Cove. When the three parted ways, Dannenberg argued that the owner had previously made his two managers full partners and co-owners in the venture. But the owner of record claimed full ownership.

The case was settled out of court, with Dannenberg's clients receiving a financial settlement.

You can read the entire article here.

Please note, the facts of every case are different. Prior results don't guarantee future success.
I'm short on time today, but Bloomberg reported a new lawsuit filed by Taser against Second Life (via its parent Linden Research Inc.). No sense in recreating the wheel, and Virtual World News has already posted a nice intro to the case here.

The case is Taser Interntional v. Linden Research in the District Court for Arizona, case 2:09-cv-00811-ROS, filed April 17, 2009.

We'll monitor developments and keep you posted.
Sorry for the delay on this, but on March 23, 2009, Worlds Inc. amended its complaint in the lawsuit against NCSoft to assert a second patent. The lawsuit now involves both of the following patents: Patent 7,181,690, Patent 7,493,558. The latter patent's claims do not appear as broad as the earlier patent's claims, which means that it will likely be more difficult to prove infringement, but also makes it generally more difficult to assert that the latter patent is invalid (because there are more elements in each claim that must be shown to be in the prior art).

For example, claim 6 of the '558 patent reads:

6. A computer readable medium with a software program recorded therein, the software program being for enabling a plurality of users to interact in a virtual space, wherein each user has a computer associated therewith, wherein each computer has a client process associated therewith, wherein each client process has an avatar associated therewith, and wherein each client process is in communication with a server process, wherein the software program includes instructions for: (a) monitoring, by each client process, a position of the avatar associated with the client process; (b) transmitting, by each client process to the server process, the position of the avatar associated with the client process; (c) transmitting, by the server process to each client process, the positions of less than all of the avatars that are not associated with the client process; and (d) determining from the positions transmitted in step (c), by each client process, a set of the avatars that are to be displayed.

Whereas claim 1 of the '690 patent reads:

1. A method for enabling a first user to interact with other users in a virtual space, wherein the first user and the other users each have an avatar and a client process associated therewith, and wherein each client process is in communication with a server process, wherein the method comprises: (a) receiving a position of less than all of the other users' avatars from the server process; and (b) determining, from the received positions, a set of the other users' avatars that are to be displayed to the first user, wherein steps (a) and (b) are performed by the client process associated with the first user.

Stay tuned...
On April 10, 2009, Nadya Suleman, who became famous in January when she gave birth to octuplets, filed a pair of trademark applications at the USPTO. She wants to use the mark for disposable diapers, cloth diapers, dresses, pants, shirts and entertainment in the nature of ongoing television programs in the field of "varity" [sic].

Sounds logical, right?

The only problem is that Austin, Texas-based Super Happy Fun Fun Inc. had already filed an application on March 12 for OCTOMOM for computer game software; downloadable mobile entertainment software such as ring tones, screen savers and wallpaper graphics; toy action figures and accessories; puppets; balloons; chess sets; golf balls; snowboards; and even Christmas tree ornaments.

When asked about the strengths of each side's case and who might end up with the mark, attorney Richard Stockton, of Banner & Witcoff, Ltd, believes that Suleman will prevail because Super Happy's trademark application likely will not survive the trademark office.

Stockton believes Super Happy's trademark application will not survive because US trademark law prohibits registration of a mark that comprises a name identifying a particular living individual without her written consent.

More to the point, the US Trademark Trial and Appeal Board, an administrative tribunal that hears appeals from applicants whose marks have been refused registration, has interpreted this particular aspect of US trademark law as prohibiting "the registration of marks containing not only full names, but also surnames, shortened names, nicknames, etc., so long as the name in question does, in fact, 'identify' a particular living individual."

Indeed, in the circa 1993 case that produced the preceding quote, In re Sauer, the TTAB upheld a refusal to register "BO BALL" (and design) for a ball on the ground that "BO" corresponded to the nickname of athlete Bo Jackson, that consumers would draw a connection between Bo Jackson and the "BO BALL" ball, and that Bo Jackson had not given written consent to use his (nick)name.

Stockton does not believe this case is much different. "'Octomom' seems to be a ubiquitous identifier for Suleman. Any attempt by Super Happy to claim that it just thought of the name itself, or that consumers would not identify 'Octomom' with Suleman, would seem to be a very difficult path to blaze in view of all the news coverage on Suleman and prior interpretations of US trademark law."

Stockton also points out that if Super Happy were to prevail at the trademark office, it would seem to run counter to another body of law, the right of publicity. The right of publicity is the right of each individual to control the commercial exploitation of her identity, and legally the right of publicity protects Suleman as much or more than US trademark law.

Super Happy Fun Fun, Inc.'s trademark application is serial number
77689864.
Nadya Suleman's trademark applications are serial numbers 77711852 and 77711827.

Not surprising in view of the court's claim construction that heavily favored Activision, it appears that Gibson and Activision have settled this case. Judge Pfaelzer of the District Court for the Central District of California, on April 17, 2009, entered an ORDER RE DISMISSAL. Activision and Gibson filed a Notice of Settlement and Stipulation of Dismissal With Prejudice, in response to which the court dismissed the case with prejudice, meaning that is cannot be refiled, and the case is CLOSED. While details of the settlement are unknown, I'm willing to bet heavily that the settlement favors Activision. Gibson would have had a herculean task in trying to convince the judge or an appellate court to overturn the Markman order construing the claims with respect to musical instruments. If I find out details of the settlement, I will update this post. We're otherwise removing this one from the tracker list, and we're done.
On a related note...

If you haven't already heard, the four men connected to The Pirate Bay, the world's most notorious file sharing site, were convicted by a Swedish court Friday of contributory copyright infringement, and each sentenced to a year in prison.

Pirate Bay administrators Fredrik Neij, Gottfrid Svartholm Warg and Peter Sunde were found guilty in the case, along with Carl Lundström, who was accused of funding the 5-year-old operation.

In addition to jail time, the defendants were ordered to pay damages of 30 million kronor ($3.6 million) to a handful of entertainment companies, including Sony Music Entertainment, Warner Bros, EMI and Columbia Pictures, for the infringement of 33 specific movie and music properties tracked by industry investigators...

Read more at WIRED.com.
You may recall that Worlds.com sued NCSoft last Christmas Eve in the Eastern District of Texas. In an interesting development, the case has been transferred to the Northern District of California. On April 13, 2009, NCSoft filed an unopposed motion to transfer the case to California, and the judge signed the order on April 14, 2009, to transfer the case on or after May 4, 2009.

This is likely the result of recent court decisions putting the breaks on plaintiffs forum shopping into the Eastern District of Texas. However, in view of the fact that Worlds.com did not oppose the motion, the court did not need to make any independent analysis of whether the Eastern Texas wsa proper or not in this case.

We will continue to monitor developments in this case.
Dream Games of Arizona Inc. v. PC Onsite
9th Cir., No. 07-15847, 4/2/2009

This is a placeholder post until we can review and provide more info. But in brief...

(From BNA): A company that engages in illegal conduct with its copyrighted video bingo game system is nevertheless entitled to statutory damages in an infringement suit, the U.S. Court of Appeals for the Ninth Circuit said April 2 (Dream Games of Arizona Inc. v. PC Onsite, 9th Cir., No. 07-15847, 4/2/2009).

Affirming a district court's statutory damages award, the court also held that a party was properly dismissed from the case and that the court could not address whether the party was secondarily liable for infringement. The court also rejected defendant's arguments that the jury should not have been allowed to see unprotectable elements of the bingo game.
April 8, 2009, Chicago -- The U.S. District Court for the Western District of Wisconsin granted summary judgment for Banner & Witcoff’s client Pandora in a patent infringement suit brought by MOAEC, Inc. Pandora is a well-known, personalized, Internet radio service, available on PCs, home devices and mobile phones.

In MOAEC, Inc., v. Pandora Media, Inc., Pandora was accused of infringing two MOAEC patents related to an entertainment system for organizing, storing and playing back music. Pandora vigorously defended itself and prevailed after full discovery shortly before trial, which was scheduled for May 2009. The court granted summary judgment of no infringement of both of MOAEC’s asserted patents.


Please click here to view the decision.

While not strictly a game case, it does deal with media companies and patents. Given the proliferation of music-related games, its not inconceivable that a similar lawsuit could one day be filed regarding Rock Band, Guitar Hero, etc...

Please direct all media inquires to Colleen Strasser at cstrasser@bannerwitcoff.com or 312.463.5465

For those Pandora fans out there, I am pleased to report that our law firm represents Pandora in this case. If any of the media who track my blog would like to speak to the attorneys who handle this case, let me know and I can put you in touch with them. More details to follow.
So I just ran in to Tom Bergeron in the lobby of my office building, and it got me thinking: how many game shows have patent protection? Game shows are games, which provide function (i.e., usefulness). Games have methods of game play. Ergo, game shows should be patentable, provided they meet the statutory requirements of novelty and nonobviousness (yes, there is also recent law--the Bilski case--that brings into question whether a game show is statutory subject matter, but a decent patent attorney (like me!) can draft claims that meet the Bilski requirements). So I ran a quick search of the patent office records and there are only 22 patents that use the word "game show" in either the title or the abstract of the patent, and they are (in reverse chronological order):
  1. 7,462,104:Method of conducting an interactive competition
  2. 7,440,919:System and method for a financial planning competition
  3. 7,244,180:Geography game show
  4. 7,201,653:Book of wishes game
  5. 7,171,487:Method and system for application specific packet forwarding
  6. 6,935,945:Internet game show in which visual clue is progressively exposed to contestants
  7. 6,845,980:Bingo-style word game
  8. 6,800,031:Method of conducting an interactive competition
  9. 6,616,143:System and method of conducting a lottery based game show
  10. 6,612,578:Bingo-style word game
  11. 6,439,997:Television/internet game show
  12. 6,340,159:"Double Cross.TM." game show
  13. 6,193,610:Interactive television system and methodology
  14. 5,860,653:Method and apparatus for playing a word game
  15. 5,545,088:Television game interactively played by telephone with television-viewing home audience
  16. 5,518,253:Televised bingo game system
  17. 5,297,802:Televised bingo game system
  18. 5,213,337:System for communication using a broadcast audio signal
  19. 5,108,115:Interactive game show and method for achieving interactive communication therewith
  20. 5,088,739:Game having an environmental theme
  21. 5,035,422:Interactive game show and method for achieving interactive communication therewith
  22. 4,781,377:Hybrid sporting event and game show
I'll add this to my list of things to do, i.e., review the patents in more detail to see which actually describe game play methods, versus which are directed to peripheral technical features, e.g., electronic game boards, etc.

Hey everyone, PatentArcade.com is now on TWITTER! Yep, you can follow us by following GameLawyer at twitter.com, or by selecting the link on the right of the PatentArcade.com home page.
We will be attending the Triangle Game Conference in Raleigh, NC, on April 29-30. Please let us know if you will be there and would like to meet. Steve Change from my firm will be speaking at 4pm on April 29 on the panel for "The Law of Gaming: Legal Protections, Perils, Pitfalls for Game Developers." I (Ross Dannenberg) will be around as well.
The creator of a software bot designed to allow users of Blizzard Entertainment Inc.'s World of Warcraft to continue playing the online role-playing game while away from their computers remains on the hook for a $6.5 million judgment, although Blizzard's request to have MDY Industries LLC pay significantly more in damages was denied.

Judge David G. Campbell of the U.S. District Court for the District of Arizona ruled Wednesday, April 1, 2009, that the $6.5 million judgment that had been stipulated following a bench trial was the maximum damages MDY's founder Michael Donnelly would have to pay the video game giant. That decision, along with a permanent injunction on the sale of the software bot on tortious interference grounds, was reached at the end of January.

More info at Law360.

The case is MDY Industries LLC v. Blizzard Entertainment Inc. and Vivendi Games Inc., case number 2:06-cv-02555-DGC, in the U.S. District Court for the District of Arizona.

...while I play with layout changes... and NO, there will NOT be advertisements on the blog!

Thanks,

Ross
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