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P.S. Products, Inc. v. Activision Blizzard, Inc.

United States District Court, E.D. Arkansas, Western Division

February 21, 2014

P.S. PRODUCTS, INC. and BILLY PENNINGTON, Individually, PLAINTIFFS
v.
ACTIVISION BLIZZARD, INC., ACTIVISION PUBLISHING, INC., and TREYARCH CORPORATION, DEFENDANTS

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[Copyrighted Material Omitted]

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          For P S Products Inc, Billy Pennington, Individually, Plaintiffs: Chris H. Stewart, LEAD ATTORNEY, Stewart Law Firm, Little Rock, AR.

         For Activision Blizzard Inc, Activision Publishing Inc, Treyarch Corporation, Defendants: Richard Blakely Glasgow, LEAD ATTORNEY, Wright, Lindsey & Jennings, Little Rock, AR.

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         OPINION AND ORDER

         Kristine G. Baker, United States District Judge.

         Plaintiffs P.S. Products, Inc. (" P.S. Products" ) and Billy Pennington bring this action against defendants Activision Blizzard, Inc., Activision Publishing, Inc., and Treyarch Corporation and allege claims of patent infringement; unfair competition; violation of the Arkansas Deceptive Trade Practices Act (" ADTPA" ), Ark. Code Ann. § 4-88-107; and common law trademark infringement. Before the Court is defendants' motion to dismiss plaintiffs' first amended complaint under Rule 12 (b)(6) of the Federal Rules of Civil Procedure (Dkt. No. 24). Plaintiffs have responded (Dkt. No. 27), and defendants have replied (Dkt. No. 30). For the reasons that follow, defendants' motion to dismiss is granted.

         I. Background

         Plaintiffs P.S. Products and Mr. Pennington, the president of P.S. Products, allege in their amended complaint that they are manufacturers of stun guns and other personal security devices. They allege they own United States Design Patent No. D561, 294 S and its continuation patent, D576, 246 S (collectively, " the '294 patent" ). Plaintiffs state that the '294 patent was issued for a design invention for a stun gun. Plaintiffs claim that their products are one a kind; their designs are their own intellectual property; no goods of this design existed prior to plaintiffs' designs and patents; and plaintiffs are the only holders of patents on products of this kind in the United States (Dkt. No. 20, ¶ ¶ 11, 13-15).

         Plaintiffs allege that their product, the Zap Blast Knuckle® ,[1] is the embodiment of the '294 patent, which claims " [t]he ornamental design for a stun gun." Plaintiffs, in their amended complaint, contend that a user holds the Zap Blast Knuckle® as if holding a pair of brass knuckles, and the Zap Blast Knuckle ® produces a 950,000 volt electrical shock when operated by a user. Plaintiffs maintain that the Zap Blast Knuckle ® is one of plaintiffs' most sought after and sold products. Plaintiffs further allege that they have complied with the statutory requirement of placing a notice of the Letters of Patent on all Stun Guns; there is no prior art to this design; plaintiffs have used the design exclusively since February 5, 2008; and plaintiffs have what constitutes a common law trademark (Dkt. No. 20, ¶ ¶ 16-23).

         Defendants are makers and publishers of video games, including the video game Call of Duty, Black Ops II, which is allegedly sold for multiple gaming platforms. According to plaintiffs' complaint, the sale

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of Call of Duty, Black Ops II has generated over $1 billion in revenue to date, and the game was the highest grossing video game sold in 2012 (Dkt. No. 20, ¶ 32-33). Plaintiffs allege that defendants' video game Call of Duty, Black Ops II contains " illegal images" that embody the '294 patent. Plaintiffs state, in their amended complaint, that in Call of Duty, Black Ops II, a player, through an avatar, may access weapons called the " Combat Suppression Knuckles" or " Galvaknuckles" by icons that are illegal images that embody the '294 patent. Plaintiffs further allege that the " Combat Suppression Knuckles" or " Galvaknuckles" which a player may access through the icons are an illegal copy of the '294 patent (Dkt. No. 20, ¶ ¶ 35-37). Plaintiffs maintain that, in the video game, when a player through an avatar uses the weapons called " Combat Suppression Knuckles" or " Galvaknuckles," the weapon emits an electrical shock representing in reality the shock volts produced by the plaintiffs' product Zap Blast Knuckle ® that embodies the '294 patent (Dkt. No. 20, ¶ 38).

         Plaintiffs allege that defendants " committed acts of infringement in violation of 35 U.S.C. § 271 by offering for sale and providing to customers in the state of Arkansas the video game Call of Duty, Black Ops II, which contains illegal images of the plaintiffs' United States Letters Patent No. U.S. D561, 294 S." (Dkt. No. 20, ¶ ¶ 3, 24, 35). Count I of the amended complaint asserts patent infringement and alleges that defendants have infringed and continue to infringe on the '294 patent through the manufacture, use, sale, importation, licensing, and/or offer for sale of Call of Duty, Black Ops II that contains illegal images that embody the '294 patent ( Id., ¶ 58). Plaintiffs allege defendants also have infringed and continue to infringe the '294 patent by contributing to and actively inducing others to use, sell, import, and/or offer for sale its video game Call of Duty, Black Ops II that contains illegal images that embody the '294 patent. Plaintiffs claim that defendants are liable for this infringement of the '294 patent pursuant to 35 U.S.C. § 271 ( Id. ).

         Count II of the amended complaint asserts unfair competition and Count III asserts deceptive trade practices. Plaintiffs, in both of these counts, allege that defendants offered for sale a video game that contains " illegal images that embody" the '294 patent and that defendants' acts " are likely to cause confusion, mistake, or deception among purchasers of the video games bearing the illegal copies of the Plaintiffs' design" because " [p]urchasers and potential purchasers are likely to believe that illegal images in the Defendants' video game originate from, or are in some way properly connected with, approved, sponsored and endorsed by the Plaintiffs" (Dkt. No. 20, ¶ ¶ 65-66, 75-76). Plaintiffs also allege in Count II that the " confusion, mistake or deception referred to herein arises out the aforesaid acts of the Defendants which constitute misappropriation and unauthorized use of the Plaintiffs' design or intangible asset" ( Id., ¶ 67). Plaintiffs assert in Count III that the " confusion, mistake or deception referred to herein arises out the aforesaid acts of the Defendants which constitute misappropriation and unauthorized use of the Plaintiffs' design or intangible asset are in violation of [the ADPTA, Ark. Code Ann. § 4-88-107]" ( Id., ¶ 77).

         Count IV of the amended complaint asserts common law trademark infringement. Plaintiffs in this count contend that plaintiffs' design " is one of a kind and no prior existed" ; that plaintiffs have exclusively used the design since February 5, 2008; that plaintiffs " are the rightful and legal owners of a common law trademark of their unique design" ; and that defendants

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" have infringed and continue[] to infringe on the common law trademark by [their] manufacture, use, sale, importation, licensing and/or offer for sale of" the video game that contains " illegal images that embody the Plaintiffs' common law trademark" (Dkt. No. 20, ¶ ¶ 85-88). In Count IV of the amended complaint, plaintiffs repeat the allegations from Counts II and III that defendants' acts " are likely to cause confusion, mistake, or deception among purchasers of the video games bearing the illegal copies of the Plaintiffs' design" because " [p]urchasers and potential purchasers are likely to believe that illegal images in the Defendants' video game originate from, or are in some way properly connected with, approved, sponsored and endorsed by the Plaintiffs" and that such acts constitute common law trademark infringement ( Id., ¶ ¶ 89-90).

         Defendants move to dismiss each of plaintiffs' claims for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         II. ...


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