Not Playing Games

My greatest legal project was helping one of our tavern clients stay open. After the tavern’s owner and operator passed away, the family closed it down until it could be sold. However, the local ordinance provided that if the tavern ceased operation for 90 consecutive days, it would forfeit its liquor license.

The closing on the sale was to take place about 120 days after the tavern closed. So, the tavern opened for one hour on day 85 or so, and a buddy and I were hired to go to the tavern to buy a drink. He ordered a beer and a Diet Coke, and I ordered a whiskey and a Mountain Dew. After downing our sodas, they poured out the booze and we went back to the office to send them a bill.

So, every once in a blue moon, you get a legal project that’s totally awesome. Take, for example, a recent lawsuit against Activision Blizzard.

The video game company was sued in Southern California District Court in late 2021 by Brooks Entertainment, Inc., a California-based company specializing in film and TV production and other forms of entertainment. Brooks Entertainment and its CEO, Shon Brooks, who describes himself as an inventor, claim they hold the trademarks for mobile games ‘Save One Bank’ and ‘Stock Picker.’

In the lawsuit, Brooks Entertainment alleged that Activision stole intellectual property from their mobile games when making its blockbuster game, ‘Call of Duty: Infinite Warfare.’ The suit further contends that the “main character” for the 2016 first-person shooter game, Sean Brooks, was based on the company’s CEO. Further, ‘Infinite Warfare’ had “scripted battle scenes that take place in a high fashion couture shopping center mall,” which were copied from ‘Save One Bank’ and ‘Stock Picker.’

In January of this year, Activision’s counsel wrote to Brooks Entertainment’s attorneys and argued that the complaint “contain[ed] serious factual misrepresentations and errors, and that the claims set forth therein are both factually and legally frivolous.”

For example, the main character of ‘Infinite Warfare’ is Commander Nick Reyes, a squad mate of Corporal Sean Brooks. Players never play as Brooks – only Reyes, a space marine who becomes the captain of the game’s primary militia. In addition, while the game does have a scripted battle scene in a shopping mall, it takes place in far future Geneva, and is one of many in-game locations – not anything like the malls in Brooks Entertainment’s games.

Because Brooks Entertainment wouldn’t back down, in March, Activision asked the court to impose sanctions under Rule 11 of the Federal Rule of Civil Procedure. This rule provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support.

This summer, the court granted Activision’s request and dismissed Brook Entertainment’s lawsuit with prejudice, meaning the claim cannot be refiled. It also ordered the plaintiff’s counsel to pay Activision’s attorneys’ fees and costs.

“Call of Duty: Infinite Warfare is a first-person shooter game, not first- and third-person as alleged, and Sean Brooks does not conduct a scripted battle scene in a high fashion couture shopping mall,” the court said in its decision in favor of Activision. “Plaintiff’s counsel could have easily verified these facts prior to filing the factually baseless Complaint, just as the Court easily verified them within the first hour and a half of playing the game.”

In a nutshell, the suit was thrown out because Brooks Entertainment’s lawyers didn’t play enough ‘Call of Duty.’ And my mom thought too many video games would rot my brain.

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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