Incredible Technologies v. Virtual Technologies

Citation: Incredible Technologies, Inc. v. Virtual Technologies, Inc., 400 F.3d 1007, 74 U.S.P.Q.2d (BNA) 1031 (7th Cir. 2005).

Factual Background
When Virtual Technologies created a videogame called “PGA Tour Golf” that is similar to Incredible Technologies’ “Golden Tee” videogame, Incredible sued Virtual for copyright and trade dress infringement.

Trial Court Decision
Incredible’s request for a temporary restraining order and preliminary injunction were denied. Though the District Court found that Virtual “had access to and copied [Incredible’s] original instruction guide and the video display expressions from Golden Tee,” it ruled that Incredible “had not shown a likelihood of success on the merits of the lawsuit” for three reasons: because Incredible’s control panel design was “not dictated by creativity,” but rather by the game’s trackball system; “the video displays contain many common aspects of the game of golf”; and Incredible’s “trade dress is functional because something similar is essential to the use and play of the video game.”

Appellate Court Decision
In an opinion by Judge Terrance Evans, the Court of Appeals agreed. Judge Evans acknowledged that it was “pretty clear. . . that [Virtual] set out to copy [Incredible’s] Golden Tee game.” Nevertheless, the judge noted that there are “several specific limitations to copyright protection” relevant to this case, including the scenes a faire doctrine, the principle that copyright doesn’t extend to any “method of operation,” and the principle that “useful articles and functional elements are also excluded from copyright protection.”

These were the elements of the two games that were “most clearly similar,” but because they are not protected, they “are not before us,” Judge Evans said. He explained that “In presenting a realistic video golf game, one would, by definition, need golf courses, clubs, a selection menu, a golfer, a wind meter, etc.” Therefore, Incredible’s video display “is afforded protection only from virtually identical copying.” But, because “certain items are necessary to making the game realistic, the differences in the presentation are sufficient to make [Incredible’s] chances of success on the merits unlikely.”

To prevail on its trade dress claim, Incredible would have to “establish that its trade dress is nonfunctional, that it has acquired secondary meaning, and that a likelihood of confusion exists between the trade dress of the two games.” Judge Evans concluded that the features Incredible claimed as its trade dress were functional and were unlikely to cause consumer confusion.

The Court of Appeals therefore affirmed the District Court’s denial of Incredible’s request for a preliminary injunction.