Computer Video Games

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A regional consumer products distributor alleged that the depiction of a vehicle and its driver in the defendant’s series of video games infringed its trademarks and trade dress.

A regional consumer products distributor alleged that the depiction of a vehicle and its driver in the defendant’s series of video games infringed its trademarks and trade dress. The plaintiff’s damages expert opined that the company was entitled to disgorgement of the defendant’s gross profits on the video game series or, alternatively, a reasonable royalty assuming that the driver was a “character” in the games.

The case was dismissed on summary judgment.

The defendant retained Mary Woodford, a vice president of Cornerstone Research, to address the damages claims. In the disgorgement calculations, Ms. Woodford took into account all relevant costs and, aided by an independent consumer survey commissioned by the defendant, allocated the profits among the various factors that made the accused video games a success, including the alleged infringement.

In addressing reasonable royalties, Ms. Woodford reviewed numerous license agreements, which showed a pattern of minimal, if any, royalties. Ms. Woodford also challenged the assertion that the driver image was a “character” by noting that the driver’s image was certainly not in the league of a fictional character, recognizable in its own right, who might command the type of royalty that the defendant claimed was reasonable. The case was dismissed on summary judgment.

Case Expert

Mary A. Woodford

Senior Advisor, Cornerstone Research