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Video game maker wins IP suit

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Indiana Lawyer Rehearing

U.S. District Judge Jane Magnus-Stinson shot down a lawsuit brought by heirs of bank robber John Dillinger that challenges how his name is used in video games based on the movie “The Godfather.”

Mooresville-based Dillinger LLC filed suit in October 2009, claiming Redwood City, Calif.-based Electronic Arts violated its trademark to the Dillinger name and character by appropriating it without their consent. They claimed the use of Dillinger’s name had no artistic relevance to the Godfather games for Sony Playstation, Microsoft Xbox and Nintendo Wii, and that the depiction misled players into thinking the games had the endorsement of Dillinger.

But Judge Magnus-Stinson disagreed, finding June 15 that the video games are protected under the First Amendment as “literary works.” The judge wrote that the Dillinger name is “quite incidental to the overall story of the game” and not a main selling point. Dillinger, who was killed by FBI agents in a 1934 shootout, was not alive during the period depicted in Francis Ford Coppola’s “The Godfather” films.

“The court cannot simply infer that the Dillinger name confuses the public, let alone that such confusion outweighs First Amendment concerns,” Judge Magnus-Stinson wrote. “All that is challenged here a single text-line used to identify one of many weapons within a visually complex videogame comprised of countless artistic elements.”

The judge also ruled that Dillinger LLC, which owns the trademark for the Depression-era bank robber, cannot challenge the Dillinger name use in the game under Indiana’s Rights of Publicity statute, since the law was enacted long after Dillinger died.

No decision has been made about whether the Dillinger heirs will appeal to the 7th Circuit Court of Appeals, according to attorney Jonathan Polak with Taft Stettinius & Hollister. Local counsel for EA is Bose McKinney & Evans.

IL Nov. 11-24, 2009,  "Using a name"

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