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Kramer Manufacturing v. Andrews
United States Court of Appeals for the Fourth Circuit
Decided February 6, 1986
783 F.2d 421 (4th Cir. 1986)

Plaintiffs Kramer Manufacturing brought suit against defendants Andrews for copyright infringement and trademark infringement in violation of the Federal Trademark Act.

Plaintiffs alleged defendants copied its computer program entitled, “Hi-Lo Double Up Joker Poker.” Plaintiffs' game is an electronic card game based on draw poker. Defendants manufacture similar coin-operated video games.

In their complaint filed on June 6, 1983, plaintiffs alleged that defendants infringed its copyright by distributing copies of the Hi-Lo Double Up Joker Poker game. The allegations included copyright infringement of the computer program itself and the audiovisuals.

The district court found for the defendants because it said that the flashing card feature in plaintiffs’ pre-existing poker game was not copyrightable and therefore, plaintiffs were not entitled to copyright protection. While the plaintiffs did not place a proper copyright protection notice on their product, the court held that the omission did not forfeit plaintiffs' rights. Because Kramer registered its copyright within five years of publication, the district court's finding that the plaintiffs did not make a reasonable effort to add proper copyright notice is erroneous.

Additionally, plaintiffs alleged that defendants violated the Federal Trademark Act by falsely designating the origin of the defendants’ version of the game. Specifically, plaintiffs argued that defendants copied the game console and the artwork on the glass panel displaying the video graphics. The Court of Appeals found evidence of intentional and direct copying sufficient to establish a prima facie case of secondary meaning. Therefore, the burden of persuasion shifted to defendants, to which they did not offer rebutting evidence.


The lower court found for the defendants and the judgment was vacated by the Court of Appeals. The Court of Appeals found evidence of both copyright and trademark infringement by defendants.
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