Plaintiff Nintendo (at the time) was in the coin-operated electronic video game business, and filed suit against defendant Elcon for copyright and trademark infringement. Defendant is in the business of assembly and sale of coin-operated electronic video games and other video game components.
Plaintiff owns the video game Donkey Kong, and the audio-video presentation of the game is covered by plaintiff’s copyright registration. The certificate of copyright registration is prima facie evidence that plaintiff’s Donkey Kong game is protected and that the copyright is valid.
Plaintiff extensively promoted and advertised Donkey Kong throughout the United States. Donkey Kong is an original audio-visual game with proper copyright protection of the characters, obstacles, background, and sequence of the game plays. Plaintiff entered into a licensing agreement with the Japanese corporation Falcon, Inc. in September 1981, which authorized Falcon to produce the game Crazy Kong. Crazy Kong was identical or similar to Donkey Kong. The game was prohibited from being imported into the United States and the license stipulated the game could only be sold within Japan.
Defendant imports the Crazy Kong games into the United States without authorization from the plaintiff, which the court found to be sufficient evidence to constitute copyright infringement. Because defendant did not obtain plaintiff’s authorization for the publication of the Crazy Kong games, plaintiff cannot lose protection for failing to have a copyright notice on the games.
The court granted plaintiff’s motion for a preliminary injunction, finding that the plaintiff showed there was a substantial likelihood of success on the copyright infringement and unfair competition claims.