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OG International v. Ubisoft
United States District Court for the Northern District of California
Case No.: 3-11-cv-04980-CRB, filed on October 7, 2011

This case initially came about when OG International (OGI) filed for a declaratory judgment.  OGI sought a declaration that its product Get Up and Dance did not infringe on Ubisoft’s copyright or trade dress and did not constitute unfair competition with regards to Ubisoft’s Just Dance franchise. 

When we last posted about this case, Ubisoft had been denied its motion for temporary restraining order and preliminary injunction.  Ubisoft then filed a motion to dismiss.  The motion to dismiss revolved around OGI’s claim that Ubisoft’s pre-suit demand letters did not fall within Noerr-Pennington immunity.  The court held that the letters did fall within Noerr-Pennington because the letters threatened litigation.  Furthermore, OGI claimed that the letters fall into the sham exception of the Noerr-Pennington doctrine.  The court held that this exception did not apply because the standard for the sham exception is that, “the party seeking to impose liability must establish both that the legal claim is objectively baseless and that the suit was brought for an anticompetitive purpose.”  OGI’s complaint, however, only stated the letters had false claims, which is a different concept from the “objectively baseless”.

The motion to dismiss was granted with leave to amend on October 9, 2012.  After OGI amended its complaint, the case continued.  However, as of April 25, 2013, the case has been dismissed with prejudice stemming from an apparent out-of-court settlement between the two parties.    
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