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Exclusive:  Tetris ' Legal Clone War Versus  Blockles
Exclusive: Tetris' Legal Clone War Versus Blockles
March 20, 2009 | By Jed Spencer

March 20, 2009 | By Jed Spencer
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[Gamasutra has discovered that The Tetris Company, well known for protecting its property, has taken legal action against VC-funded social games portal OMGPOP, which it believes is infringing on its works. In an exclusive analysis, intellectual property attorney Jed Spencer examines the issue and its ramifications.]

Last week, Tetris owners Tetris Holding and The Tetris Company sued BioSocia, the owner of social games site OMGPOP, and Charles Forman over the game Blockles, claiming that Blockles infringes numerous intellectual property rights of its famous puzzle game.

The suit, made in the U.S. District Court, S.D.N.Y., claims that Blockles infringes numerous Tetris intellectual property rights, most notably copyright of the visual game displays and the Tetris trade dress.

[EDITOR'S NOTE: Tetris is probably one of the most lawsuit-prone games of all time, with multiple lawsuits around the time of its popularity. In recent years, The Tetris Company has been notably proactive in enforcing game rights against 'clones'.]



Absent from Tetris' complaint is any allegation that Blockles copied Tetris' source code. Instead, it focuses on Blockles' graphical similarities and style of gameplay.

While the "idea" of a falling-blocks puzzle game cannot be protected under copyright law, the expression of that idea can be.

Typically, there are multiple, separately-protected layers of copyright protection in video games. Copyrightable material ranges from the actual lines of source code to characters, sounds, songs, video clips, and artwork included in a game.

In addition to registering the underlying code for its game, Tetris owns multiple copyright registrations for the audiovisual displays in its games.

In order to prove copyright infringement, Tetris must show that the owners of Blockles had access to a Tetris game to be able to copy Tetris’ visual elements and that Blockles’ visual elements are substantially similar.



Unlike copyright, trade dress rights don't subsist from the moment of creation. Like trademarks, trade dress rights arise from use. Trade dress in a video game is best defined as the overall appearance of a game.

In order to establish trade dress rights in product designs, the trade dress must acquire "secondary meaning," That is, consumers have come to associate the "look and feel" of the product with a single source -- Tetris, in this case.

To prove trade dress infringement, Tetris must articulate the elements of its distinctive trade dress, show that it has acquired rights in those elements as a whole and that the overall appearance of Blockles is likely to cause confusion in consumers as to the source of the game (i.e., consumers may believe that Tetris created Blockles or granted a license to the owners of Blockles).

The elements Tetris has detailed as its distinctive trade dress are:

- "Geometric playing pieces formed by four equally-sized, delineated blocks;"
- "The long vertical rectangle playing field, which is higher than wide;"
- "The downward, lateral and rotating movements of the playing pieces;"
- "The appearance of a shadow piece at the bottom of the playing field matrix to indicate where the Tetrimino will drop;"
- "The appearance of a trailer effect after the Tetrimino during a 'hard drop' command;"
- "The display of the next Tetrimino that will fall down the matrix in a small box next to the playing field;"
- "The disappearance of any completed horizontal line;"
- "The display of a flash effect when a completed horizontal line disappears;" and
- "The subsequent consolidation of the playing pieces remaining on the playing field as a result of the downward shift into the space vacated by the disappearing line."

While one of these features alone would probably not be enough to show that consumers associate it with a single source, Tetris is hoping to prove that taken together, these elements can only point to Tetris.

Regardless of the outcome, this case illustrates an important point. Even in relatively simple video games like Tetris, there are many forms of intellectual property present.

As a developer or publisher, understanding how these rights are created and enforced allows you to potentially avoid infringing others' rights and provides insight of how best to protect your own intellectual property.

[Jed Spencer is an attorney with Ober|Kaler, a firm that frequently works with video game companies at all stages of product development.]


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Comments


Sean Parton
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While I'd normally shrug my shoudlers at a situation like this, OMGPOP doesn't only blantently rip off Tetris, but other well-known old games like Bomberman, Pictionary, and Bust-A-Move. I hope that the Tetris company gets the judge to throw the book at OMGPOP for the blatent riping off that they're pulling.

Peter Dwyer
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I never really comment on these stories but, this is a ridiculous rip-off of tetris. It's one thing to do a falling block puzzle game but, even the shapes are identical. There is simply no attempt to change one aspect of the tetris original.

Maurício Gomes
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In fact, I myself stand for the side of OMGPOP, not because they rip-off people work (and indeed that is not right), but because Tetris holding company whatever LOVES to bash people and refuse to license their games and whatnot...



I done a great research into the subject once, and I discovered that there are a lawsuit fest launched by the Tetris corp, not only against clear commercial clones, but even threats against students that done a tetris clone to learn C++



Also they enforce some rules if you want to license Tetris that are plainly bad sometimes, a lot of people loved some Tetris (licensed) that suddenly got sued because they do not featured some bizarre things like piece kick (you get a piece close to a wall and press rotate and it "kicks" the wall... Hard to explain :/ but usually this break gameplay for some fans...) or because the random piece generator used the better algorith (it was proved mathematically that the current algo that you are forced to use when you license Tetris does not lead to a infinite game, because the amount of S shaped pieces that it generate forces you to lose, even if you are sufficiently skilled)

Jake Del Valle
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TTC is nothing but a bunch of fake people having said that I think you know what side I am with but not because I play everyday OMGPOP, I'm on every tetris clone's side because TTC shouldn't be waisting time suing people they should be developing new modes or something and I'm more convinced now that I read other peoples comments. Sorry for spelling mistakes if there are any.

Chad Clinard
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Christ. Where to begin.



OMGPOP is not making any money off of anyone, registration is FREE and these games are for people's ENJOYMENT. And I could care less about the other games they have on their site besides Blockles.



Instead of Tetris corp going around suing good PC Tetris multiplayer clones that people love(d) like myself, why can't they actually go %*#$ING MAKE ONE. The closest they've come to is TetrisFriends.com, which started as a facebook application and is only single player. It has been in the works for at least two years now and has STILL not even transitioned to actual multiplayer yet. They've created online multiplayer for game consoles like nintendo ds, xbox360, etc. but still have yet to release anything in North America for PC. PC is where Tetris ****ing originated at. What are they thinking?



The fan-created clones like TetriNET2 that got shut down by Tetris corp were light years ahead of TTC and were so much fun and addictive. Tetris corp did no one any favors by killing that community two years ago. Multiplayer Tetris for PC is so much fun and all they are trying to do is eradicate it. I could understand if they had an official PC game that is a good alternative to the current/past clones but they DON'T. This is completely absurd and ridiculous -- and this is the truth about the article that hasn't been brought to light here.



The people working for Tetris corp are a bunch of lazy communist bastards, just catering to the lowest common denominator and showing no incentive to create anything for advanced Tetris players like my friends and myself, who really really want custom controls, custom sensivity, and a great social chatroom-like/messaging atmosphere. Blockles at least has the social atmosphere part right, and do an excellent job at that. There is another clone that I currently prefer more a lot more than Blockles, and if ever discovered, is Europe-based so good luck to TTC trying to sue them too. Pricks.

Adrian Lopez
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The vast majority of the claimed trade dress elements are actually gameplay mechanics, and therefore functional rather than decorative. Is it not the case that functional elements cannot be granted trademark protection? If so, most of the claimed elements are unworthy of the trade dress protection being sought. The Tetris Company is in fact trying to claim exclusive rights to the mechanics of Tetris, which is not much different than someone trying to claim exclusive rights to the mechanics of Chess.


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