OG International v.
United States District Court for the Northern District of
Case No.: 3-11-cv-04980-CRB, filed on October 7, 2011
This case
initially came about when OG International (OGI) filed for a declaratory
judgment.  OGI sought a declaration that
its product Get Up and Dance did not
infringe on Ubisoft’s copyright or trade dress and did not constitute unfair
competition with regards to Ubisoft’s Just
When we last posted about this case, Ubisoft had been denied
its motion for temporary restraining order and preliminary injunction.  Ubisoft then filed a motion to dismiss.  The motion to dismiss revolved around OGI’s
claim that Ubisoft’s pre-suit demand letters did not fall within Noerr-Pennington immunity.  The court held that the letters did fall
within Noerr-Pennington because the
letters threatened litigation.
Furthermore, OGI claimed that the letters fall into the sham exception
of the Noerr-Pennington
doctrine.  The court held that this
exception did not apply because the standard for the sham exception is that,
“the party seeking to impose liability must establish both that the legal claim
is objectively baseless and that the suit was brought for an anticompetitive
purpose.”  OGI’s complaint, however, only
stated the letters had false claims, which is a different concept from the
“objectively baseless”.
The motion to dismiss was granted with leave to amend on
October 9, 2012.  After OGI amended its
complaint, the case continued.  However,
as of April 25, 2013, the case has been dismissed with prejudice stemming from
an apparent out-of-court settlement between the two parties.