(This is an archived case summary)
This 1983 judgment of the District Court of Nebraska found the defendants liable for copyright and trademark infringement of three Midway coin-operated arcade games: “Pac-Man”, “Galaxian”, and “Rally-X.” Midway sold their games to regional distributors, who then sold them to operators, such as arcade owners. The defendants, who were previous operators of Midway games, purchased 10 “copy games” and 3 “conversion kits” and sold them to other retailers. They called the “Pac-Man” imitator “Mighty Mouth,” the Galaxian imitator “Galactic Invaders,” and did not bother to change the name of their copied “Rally-X” game.
The plaintiffs had registered copyright in their games and the court accepted their certificates of copyright registration as “prima facie evidence of the validity” of these copyrights. The court found that the onus was on the plaintiff to demonstrate copying by establishing that the defendants had direct access to the plaintiff's work, or that the defendant's allegedly infringing games were so substantially similar that there could be no doubt that copying had taken place.
The court found that there were “striking similarities” between the plaintiffs' and defendants' games, and that the characters, colors and sound effects were “in virtually every aspect identical.” The defendants argued that they did not know the machines they sold were copies, but the court held that liability attached to the “innocent infringer regardless of intent” and the defence was without merit.
On the issue of trademark infringement, the court found that the defendants had sold products that were likely to create confusion between their brand and Midway's brand. In fact, when prospective customers phoned, the defendants told people the game was “just like ‘Pac-Man’,” as a selling feature of the game. This created, in the court's opinion, a significant likelihood of confusion. The fact that the names picked for the defendants' games were so similar to Midway's names was further evidence of trademark infringement.
Midway Manufacturing Co. v. Dirkschneider
1983, US Dist. Ct, Nebraska
571 F. Supp. 282
KEYWORDS: copyright infringement – trademark infringement – arcade games
SUMMARY BY: Dani Lemon