No. CV 04-9253RGKPLAX.
C.D. Cal.

March 9, 2005.

The case is in the early stages, and the present ruling is on a motion to strike and motion to dismiss various claims. Marvel contends that NCSoft marketed, distributed and hosted a computer game that allows players to play online and create characters that are virtually identical in name, appearance, and characteristics to characters owned by Marvel. Marvels allegations include (1) direct, (2) contributory, and (3) vicarious copyright infringement under 17 U.S.C. § § 101, et seq., (4) direct, (5) contributory, and (6) vicarious registered trademark infringement under 15 U.S.C. § 1114, (7) direct, (8) contributory, and (9) vicarious common-law trademark infringement under 15 U.S.C. § 1125, (10) intentional interference with actual and prospective economic advantage, and (11) declaratory relief.

The motion to strike was granted-in-part, because the allegedly infringing works depicted in the exhibits and referred to in the pleadings were created by Plaintiffs themselves.

The motion to dismiss was granted as to Plaintiffs’ 4th, 5th, 6th, 8th, 9th, and 11th causes of action (the trademark-related issues, as well as the DJ claim).

Even though the trademark claims were dismissed, this will be a case to watch on the copyright side of the aisle, given that the scope of protection in copyrightable characters with respect to video games will inevitably be an issue. The specific Marvel characters involved inclue Captain America, Wolverine, Incredible Hulk, Magneto, The Thing, Phoenix, and Iron Man.

We’ll keep you posted as this case progresses.