Following yesterday's news of a lawsuit filed by Guitar Hero publisher and recent Activision acquisition RedOctane against The Ant Commandos (TAC) over third-party Guitar Hero controllers, TAC has announced a countersuit.
TAC filed its counter claim in the United States District Court for the Central District of California against both Activision and RedOctane, alleging that both companies are violating Federal Antitrust legislation pertaining to the Guitar Hero game and controller bundle. In addition, the counter claim goes on to allege that both Activision and RedOctane "copied the identifiable trade dress of the controller from its developer and part owner of TAC, Topway Electrical Appliance, Co."
More specifically, the complaint alleges that the controller's design was copied by RedOctane (including its color, shape, and placement of the five fret buttons located on the controller), and that RedOctane developed Guitar Hero "around Topway’s identifiable trade dress."
In addition to the counter claim, TAC has filed for a preliminary injunction asking the federal court to enjoin Activision and RedOctane from further infringing on the trade dress originally developed by Topway. The injunction also asks the court to allow for fair competition in the market by enjoining the sale of the game/controller “bundle” so that consumers no longer have to purchase both Guitar Hero and the RedOctane controller, but rather may purchase the game and have their choice on which controller to buy. To date, no injunction against TAC has been filed in this matter.
RedOctane's original complaint alleged offenses including unfair competition, trademark infringement, copyright infringement, unfair and deceptive trade practices, false advertising and unjust enrichment. RedOctane also alleges that despite advertising for the products, they are not fully compatible with the popular PlayStation 2 rhythm game.
Topway originally designed and manufactured the Magical Guitar, a guitar controller for use with PlayStation in 1999. TAC alleges in its cross complaint, among other things, that RedOctane purchased several hundred of the Magical Guitars from Topway prior to producing the controllers themselves. Furthermore, the complaint alleges that top management at RedOctane visited the Topway factory on numerous occasions and specifically inquired about Topway’s trade dress design.
Hong Lip Yow, owner of The Ant Commandos, Inc., says TAC will continue to design, manufacture, and distribute The Guitar Mania Line despite the original claims filed by Activision Publishing and RedOctane. “TAC will continue to make and improve on innovative peripherals to provide gamers with a choice. I strongly believe consumers should have their own choice, especially when it comes to choosing a better quality and better designed product,” stated Hong Lip Yow.
