Time for a “dance off”?

Video Game Law Blog

October 31, 2011

Court denies Ubisoft's motion for a temporary restraining order and preliminary injunction against OG's "Get Up and Dance"

Though it's likely that most self-styled "hard core" gamers (myself included) tend to eschew dance-based video games, their popularity is undeniable, as is the fact that they continue to produce huge profits for video game developers and publishers.  Currently leading the charge is Ubisoft and its Just Dance franchise, which launched on the Wii in 2009 and continues to be a big seller with the cross-platform release of Just Dance 3 in October.  Unsurprisingly given the success of the genre, a number of competitors have entered the market (most notably, Microsoft/Harmonix's Dance Central which has been hailed by many critics as the best game for the Kinect ).

During E3 2011, OG International Ltd. announced that it too would be entering the dance-based game market with its own entry, Get Up and Dance.  Following this announcement, Ubisoft began corresponding with OG regarding possible claims of copyright and trade dress infringement and indicated that it would file suit no later than October, 2011.  OG then filed suit for declaratory judgment on October 7, 2011, following which Ubisoft countered with a motion for a temporary restraining order and preliminary injunction requesting that the court enjoin the release of Get Up and Dance prior to its scheduled release in early November, 2011.  In particular, Ubisoft claimed that OG has violated its copyrights and trade dress in Just Dance by copying two key visual elements that Ubisoft argued distinguish the Just Dance series from other dance-based video games on the market, namely, its "avatar" and "instructor" elements. 

In a decision delivered on October 26, 2011, Justice Charles R. Breyer of the United States District Court denied Ubisoft's request for a temporary restraining order and preliminary injunction, holding that "Ubisoft has failed to make a clear showing that it is entitled to such extraordinary relief.  While its claims are not implausible, it has not demonstrated a clear likelihood of success on the merits, nor a clear showing of irreparable harm.  Moreover, the balance of the hardships do not clearly favor Ubisoft, thus even serious questions on the merits are not sufficient to grant injunctive relief."

The full text of the decision can be found here.