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Exclusive:  Tetris ' Legal Clone War Versus  Blockles

Exclusive: Tetris' Legal Clone War Versus Blockles Exclusive

March 20, 2009 | By Jed Spencer

March 20, 2009 | By Jed Spencer
More: Console/PC, Exclusive

[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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