Page:Atari v. North American Philips Consumer Electronics.pdf/7

 Munchkin, the dots are rectangular and are always moving. As the gobbler munches more dots, the speed of the remaining dots progressively increases, and the last dot moves at the same speed as the gobbler. In the words of the district court, “the last dot … cannot be caught by overtaking it; it must be munched by strategy.” At least initially, one power capsule is located in each of the maze’s four corners, as in PAC–MAN.

Finally, K. C. Munchkin has a set of sounds accompanying it which are distinctive to the whole line of Odyssey home video games. Many of these sounds are dissimilar to the sounds which are played in the arcade form of PAC–MAN.

C. The Creation and Promotion of the Accused Work

Ed Averett, an independent contractor, created K. C. Munchkin for North American. He had previously developed approximately twenty-one video games, including other maze-chase games. He and Mr. Staup, who is in charge of North American’s home video game development, first viewed PAC–MAN in an airport arcade. Later, after discussing the strengths and weaknesses of the PAC–MAN game and its increasing popularity, they decided to commence development of a modified version to add to North American’s Odyssey line of home video games. Mr. Averett also played PAC–MAN at least once before beginning work on K. C. Munchkin.

Mr. Staup and Mr. Averett agreed, however, that the PAC–MAN game, as is, could become popular as a home video game, but only if marketed under the “PAC–MAN” name. Thus, as Mr. Averett worked on K. C. Munchkin, North American sought to obtain from Midway a license under the PAC–MAN copyright and trademark. Mr. Staup later learned that the license was not available and so informed Mr. Averett. At that time, Mr. Averett had not yet completed K. C. Munchkin.

When Mr. Averett finished the project, North American examined the game and concluded that it was “totally different” from PAC–MAN. To avoid any potential claim of confusion, however, Mr. Averett was told to make further changes in the game characters. As a result, the color of the gobbler was changed from yellow to its present bluish color. North American also adopted the dissimilar name “K. C. Munchkin” and issued internal instructions not to refer to PAC–MAN in promoting K. C. Munchkin.

An independent retailer in the Chicago area nonetheless ran advertisements in the Chicago Sun-Times and the Chicago Tribune, describing K. C. Munchkin as “a Pac-Man type game” and “as challenging as Pac-Man.” Another printed advertisement referred to K. C. Munchkin as “a PAC–MAN game.” Plaintiffs also sent investigators to various stores to purchase a K. C. Munchkin game. In response to specific inquiries, sales persons in two stores, one being the aforementioned independent retailer, described the Odyssey game as “like PAC–MAN” and as “Odyssey’s PAC–MAN.”

II. STANDARD OF REVIEW AND PRELIMINARY INJUNCTIONS

This court will not reverse the grant or denial of a preliminary injunction absent “a showing from the totality of the factors that a clear abuse of the trial court’s discretion has occurred or that the court’s findings were clearly erroneous or represent a certain mistake of law.” Menominee Rubber Co. v. Gould, Inc., 657 F.2d 164, 166 (7th Cir. 1981). Four factors enter into the district court’s exercise of discretion to grant or deny a preliminary injunction: (1) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the injunction does not issue; (2) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on the defendant; (3) whether the plaintiff has at least a reasonable likelihood of success on the merits; and (4) whether the granting of a preliminary injunction will disserve the public interest. Reinders Brothers v. Rain Bird Eastern Sales Corp., 627 F.2d 44, 48 (7th Cir. 1980).