THQ And Activision Go At It Over Cover Art/They Settle Out Of Court

[The 1 2 P]

No wonder people think the video game industry is losing it's creativity these days: http://www.gamedaily.com/articles/news/thq-sues-activision-over-baja-box-art/

I completely side with THQ on this on, as Activision had more than enough time to come up with an alternate cover. Since I'm pretty sure Activision will lose this battle, it may be a good idea to pick up a copy of Baja 1000 while it still has that cover art. It may make a pretty interesting collectible in the furure.

[jcalder8]

I agree with THQ also, those covers look very similar, but if Baja from activision gets better reviews THQ might end up thanking activision.

[scooterb23]

What are the odds that 2 Baja racing games just happen to be coming out at the same time anyway?

And it's Baja racing...how many different action shots can you really get with it ;)

[Iron Draggon]

COOL... I'm glad I preordered it... I sure hope this doesn't push back the release again though... it's already been pushed back once... that's enough!

as for the lawsuit, I think it could go either way... the artwork is certainly similar enough at first glance to give one the impression that it's the same game, but it's not exactly the same upon closer inspection... it's just very similar... and given the fact that both games are Baja racing games, it could be argued that the similarities are simply due to the fact that both games deal with the same subject matter, not because of any intent to deceive

also, just because THQ's game was released first doesn't immunize them from the possibility of a countersuit... note that Activision's game is an officially licensed Baja game, whereas THQ's game isn't... so if Activision's lawyers are smart, they'll claim that THQ's game actually infringes on their license, and not the other way around... first to license should trump first to market... so it'll be very interesting to see what the courts have to say about this case

I have to admit though, when I placed my preorder for Activision's game, I was under the impression that it was simply the PC version of THQ's game!

[Push Upstairs]

And it's Baja racing...how many different action shots can you really get with it ;)

Thats what I'm wondering.

I admit they look similar but, ya know, its Baja racing. Not a lot or room for creative interpretations.

[Rob2600]

it's Baja racing...how many different action shots can you really get with it ;)

http://image.com.com/gamespot/images/bigboxshots/4/588744_40435_front.jpg (http://www.gamefaqs.com/console/snes/image/588744.html?box=40435)

GameFAQS - Super Off Road: The Baja (SNES) (http://www.gamefaqs.com/console/snes/image/588744.html?box=40435)


or


http://www.atarimania.com/8bit/boxes/low_res/baja_buggies_d7.jpg (http://www.atarimania.com/zoom_frame.php?TYPE_IMG=D7&ID=469&MENU=8&NUM_IMAGE=0)

Atarimania - Baja Buggies (Atari 400/800) (http://www.atarimania.com/detail_soft.php?MENU=8&VERSION_ID=469)


:)

[Push Upstairs]

I still see:

A jumping Baja truck.
Some cactus
Dirt.
Rocks.

[Iron Draggon]

I just went over the copy of the full complaint posted at Patent Arcade, and it brings up some very interesting points which Activision's lawyers should be able to use against THQ's lawyers... it seems to me that THQ is just shooting itself in the foot, and they're the ones actually trying to deceive the public

notes:

FACTS COMMON TO ALL CLAIMS FOR RELIEF:

#8: There is an infinite variety of ways to depict off-road racing vehicles in action. The THQ Game's packaging art's particular depiction of off-road racing vehicles in action is original, unique, and distinctive.

(so it's conceivable that of all the infinite ways that it could be depicted, the two particular depictions in this case are simply a result of coincidence, due to the fact that both images depict off-road racing in action, and all of the infinite ways that it could be depicted would inevitably be similar in some way... hence Activision's particular depiction is just as original, unique, and distinctive as THQ's particular depiction is, and THQ's claims are moot points)

SECOND CLAIM FOR RELIEF:

#28: On October 23, 2008, THQ filed for registration of the work with the United States Copyright Office and did the things necessary to obtain such registration.

(so THQ filed to register for copyrights related to its work on the same day that they filed suit against Activision for its anticipated release of its game, and its disputed artwork, which THQ alleges is infringing on their previously UNREGISTERED copyrights, despite the fact that THQ released its artwork to the public in June 2008, and they released their game to the public on September 22, 2008... in other words, they're trying to sue Activision for being expected to release something that they feel infringes on something that THQ made available in the public domain before they attempted to copyright it... so if Activision filed to register for copyrights related to its work before THQ filed to register for copyrights related to its work, THQ will have no case against Activision, but Activision may have a case against THQ... and regardless of filing dates, both parties may just have to accept it)

so I suspect that however this case turns out, it will result in some changes in the ways that game companies release cover art, or even concept cover art, especially prior to a game's release... as it seems to me that the fact that THQ released its cover art several months before it released its game, without registering its copyrights for it first, and then they still waited a full month to register their copyrights for it after they released their game, all should result in the courts ruling that their artwork is public domain, and therefore can't be copyrighted... so if Activision is doing anything malicious, they're prolly just teaching THQ a lesson about what happens when you release stuff to the public without registering any copyrights for it before releasing it

I may be wrong about some or all of this, as I'm not a legal expert, but I'd love to see THQ get burned in this case... not because I have anything against THQ, but because I just love it when a big corporation that's supposed to know better gets screwed because they screwed up... and I love it even more when such corporations try to cover up their screwups by filing lawsuits, and subsequently get their asses handed to them in court... but of course I'd love it just as much if Activision ends up being the one that gets screwed for screwing up, even if they haven't filed any lawsuits yet... it's always fun to watch big corporations going at each other like cats & dogs in court, over stuff that the general public otherwise could care less about!

EDIT:

on second thought, FUCK THQ! I hope they lose their ass over this case, and end up going bankrupt for pursuing it... they're already in financial trouble, and now they pull a stunt like this... smells like a typical attempt to cash in on another company's success, just because they're too damn lazy and incompetent to have any successes of their own to cash in on...

THQ's game is only available for PS3 & XBOX 360, and it sells for $59.99 on both systems

Activision's game is available for PS2, PS3, XBOX 360, Wii, & PC, and it sells for $39.99 on PS3, XBOX 360, & Wii, it sells for $29.99 on PS2, and it sells for $19.99 on PC... HMMM... WTF?

so how the fuck is anyone gonna be confused about which game is which when they go to pay for it? and which company sounds more like it's more interested in making money selling games to all its potential customers, and which company sounds like it's more interested in making money by filing lawsuits and whining about people not buying its overpriced games?

Activision deserves my money for its Baja game, but THQ sure as hell doesn't! if THQ is so worried about losing money, then why the hell isn't there a PC version of their Baja game? I certainly would've bought it if there was, but there isn't, so how can I buy what they won't sell to me? they can whine about Activision's artwork all they want, but why should I care?

if THQ ends up winning this case, I hope the judge is wise enough to only award them rights to the profits on sales of the PS3 & XBOX 360 versions of Activision's game, which are the only versions in direct competition with THQ's game... and I hope he tells them that they should've released versions of their game for the PS2, Wii, & PC if they wanted the profits from Activision's sales of their game for those systems too... fuck them and their greediness!

[spoon]

I still see:

A jumping Baja truck.
Some cactus
Dirt.
Rocks.

Quote of the month.

They look similar though. The scene set up is the problem. The trucks are in the same positions, similar poses. With a motorcycle replacing the flipping car in the background and some clouds replacing the helicopter in the sky. The title, while not similar fonts, are in the same position and at the same angle.

[Iron Draggon]

this could very well become one of the most fascinating cases in videogame history, regardless of the outcome... still intrigued enough to continue doing some research on it, I just looked up the act that THQ is filing suit under... and I still think that it could go either way, but it'll likely be a hell of a fight!

relevant legalese:

Trademark Act of 1946 ("Lanham Act") as Amended

PUBLIC LAW 79-489, CHAPTER 540, APPROVED JULY 5, 1946; 60 STAT. 427

§ 43 (15 U.S.C. §1125). False designations of origin; false description or representation

(a) (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

(3) In a civil action for trade dress infringement under this Act for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.

(c) (1) The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection. In determining whether a mark is distinctive and famous, a court may consider factors such as, but not limited to--

(A) the degree of inherent or acquired distinctiveness of the mark;

(B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used;

(C) the duration and extent of advertising and publicity of the mark;

(D) the geographical extent of the trading area in which the mark is used;

(E) the channels of trade for the goods or services with which the mark is used;

(F) the degree of recognition of the mark in the trading areas and channels of trade used by the mark's owner and the person against whom the injunction is sought;

(G) the nature and extent of use of the same or similar marks by third parties; and

(H) whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register.

(2) In an action brought under this subsection, the owner of the famous mark shall be entitled only to injunctive relief as set forth in section 34 unless the person against whom the injunction is sought willfully intended to trade on the owner's reputation or to cause dilution of the famous mark. If such willful intent is proven, the owner of the famous mark shall also be entitled to the remedies set forth in sections 35(a) and 36, subject to the discretion of the court and the principles of equity.

(3) The ownership by a person of a valid registration under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register shall be a complete bar to an action against that person, with respect to the mark, that is brought by another person under the common law or a statute of a State and that seeks to prevent dilution of the distinctiveness of a mark, label or form or advertisement.

(4) The following shall not be actionable under this section:

(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.

(B) Noncommercial use of a mark.

(C) All forms of news reporting and news commentary.

(d)(1)(A) A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person--

(i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and

(ii) registers, traffics in, or uses a domain name that--

(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark;

(II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or

(III) is a trademark, word, or name protected by reason of section 706 of title 18, United States Code, or section 220506 of title 36, United States Code.

(B)(i) In determining whether a person has a bad faith intent described under subparagraph (A), a court may consider factors such as, but not limited to--

(I) the trademark or other intellectual property rights of the person, if any, in the domain name;

(II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;

(III) the person's prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;

(IV) the person's bona fide noncommercial or fair use of the mark in a site accessible under the domain name;

(V) the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;

full legal text here:

http://www.law.uconn.edu/homes/swilf/ip/statutes/lanham43.htm

so it sounds like the burden of proof is on THQ, but if they're successful, then Activision can't countersue them, and they'll be held liable for damages

however, given that both games were in development around the same time, and they both deal with the same subject, it'll be damn hard to prove that any infringement was willful... it'll prolly just be dismissed as a coincidence, even though THQ's game just barely got released before Activision's game

[Push Upstairs]

I still say coincidence.

The bigger question is: which one is the better game?

[FrakAttack]

There...are...FIVE...FOG...LIGHTS!!!
http://i102.photobucket.com/albums/m112/FrakAttack/picard_four_lights.jpg

[walrusmonger]

would it have been so hard to make the front truck yellow or green or any other color and the back truck anything but blue, and then just flip the image so they were pointing the other way?

no it wouldnt.

they have pretty much the exact same pose and the same colors, it's like when you did a project in art class and the people around you all copy off of you.

[DeputyMoniker]

would it have been so hard to make the front truck yellow or green or any other color and the back truck anything but blue, and then just flip the image so they were pointing the other way?

no it wouldnt.

they have pretty much the exact same pose and the same colors, it's like when you did a project in art class and the people around you all copy off of you.

There is a helicopter in the THQ box art. It's obviously the better game.

[XYXZYZ]

All they had to do was flip the picture around in Photoshop and no one would have noticed.

[mailman187666]

I would never have noticed unless they were sitting next to each other on the shelf. I wouldn't consider buying either game since its not really the genre I'm into. They really do look almost exactly alike. Like mentioned before though, all there would have had to have been was a mirror image of the same cover and there probably would be no lawsuit.

[DigitalSpace]

Wow, who thought the battle of the 2008 Baja games would get this ugly?

(Then again, who thought there would even be a battle of 2008 Baja games, for that matter?)

[Kitsune Sniper]

How the hell can you even trademark the word "Baja"?

It's a STATE NAME! (Short for Baja California / Baja California Sur).

[Push Upstairs]

This battle of the Baja games is even bigger than the Presidental election!

[Phosphor Dot Fossils]

Where's Nelson with the obligatory Baja 'HA-HA!'?

[DigitalSpace]

This battle of the Baja games is even bigger than the Presidental election!

Two games aiming to appeal to the Joe the Baja fan...

...who may or may not be a plumber.

[jcalder8]

There...are...FIVE...FOG...LIGHTS!!!
http://i102.photobucket.com/albums/m112/FrakAttack/picard_four_lights.jpg
I love this episode, or episodes if you'd rather.

[SegaAges]

There...are...FIVE...FOG...LIGHTS!!!
http://i102.photobucket.com/albums/m112/FrakAttack/picard_four_lights.jpg

WIN!

If you want to break it down:

The truck doing a jump in thq's game does not even look blue, in fact, it looks like a dark shade of grey along with the white.

activision has mountains in the background, which thq has a desert

the red car on thq looks like a wierd modified pt cruiser with a spoiler, while the activision red car actually looks like a truck

the thq truck is coming down from the jump, while the activision truck hit the peak of its jump.

the angle in the thq one is more of a front view, while the angle in the activision one is more of a side view.

the fonts are not similar

the logos are both at an angle starting from the left corner. This is not magically exclusive to thq only. other companies do it.
http://xbox360.gaming-universe.de/screens/boxart_us_burnout-revenge.jpg
http://360.kombo.com/images/content/news/box_banjo_360.jpg

Similarities:
2 baja cars are racing, and the car in the background is in the middle of a jump.

[The 1 2 P]

Similarities:
2 baja cars are racing, and the car in the background is in the middle of a jump.

Um....I don't think it's quite the same thing, lol.

[Rob2600]

The truck doing a jump in thq's game does not even look blue, in fact, it looks like a dark shade of grey along with the white.

activision has mountains in the background, which thq has a desert

the red car on thq looks like a wierd modified pt cruiser with a spoiler, while the activision red car actually looks like a truck

the thq truck is coming down from the jump, while the activision truck hit the peak of its jump.

the angle in the thq one is more of a front view, while the angle in the activision one is more of a side view.

Can you seriously look at these two covers side by side and say they don't look very similar? I know they're not 100% identical, but come on.

http://www.aolcdn.com/ch_gamedaily/bajaboxes.jpg (http://www.gamedaily.com/articles/news/thq-sues-activision-over-baja-box-art/)

[slapdash]

Even the slant of the logo, man! Of course, I wonder if the two respective artists didn't get the image from a videotape anyway, and both subconsciously depicted the same scene in some strange coincidence...

[Push Upstairs]

At most the composition is similar.

As I said before, there isn't a whole lot of creative liberty you can take with something like Baja racing.

Unless you do Baja racing on Mars (Mars racing?)

[emceelokey]

This lawsut is obviously a joint venture between ThQ and Activision to get people to TALK ABOUT BAJA GAMES. 2 games that no one even cared about is now getting free publicity. Shame on both of them.
Maybe those photos are from the same race with two photographers side by side.

[Push Upstairs]

And we fell right into their trap! Damn!

[SegaAges]

And we fell right into their trap! Damn!

http://sydlexia.com/blogstuff/ackbar_its_a_trap.jpg

[Iron Draggon]

Where's Nelson with the obligatory Baja 'HA-HA!'?

I dunno, but my friend's response was:

"pure coincidence! Baja humbug!" LOL

[emceelokey]

I actually saw these games in person at a Game store the other day... Let's just say I now own two Baja games.

[Nirvana]

I seriously laughed my ass off at this whole case.

XD Why the hell would they blatantly steal their artwork?

[Iron Draggon]

I actually saw these games in person at a Game store the other day... Let's just say I now own two Baja games.

I really wish that THQ made a PC version of their game... I'd love to be able to compare them side by side... but at least my copy of Activision's game arrived in the mail today... so I now own yet another piece of history, if the artwork ends up getting changed... if that happens, maybe I'll store it next to my copy of Mystaria for the Saturn... anybody remember that lawsuit? it ended up with the name being changed to Blazing Heroes for later releases

[Leo_A]

Too bad the Activision game sucks badly after getting to try it out, the THQ release was a pretty decent title. Best part of the Activision title is the laugh I've gotten out of this whole deal...

[The 1 2 P]

Looks like we will have a happy ending after all. Activision agreed to change the cover art and the revamped image is contained within: http://www.gamedaily.com/articles/news/activision-changes-baja-artwork-thq-drops-lawsuit/?biz=1

[bcks007]

For the ps2 version too? Holy crap if so, i better pick up on the 1st version before it goes away.

[emceelokey]

Happy ending indeed.

[nate1749]

And it's Baja racing...how many different action shots can you really get with it ;)

That's what I was thinking.

[jupitersj]

http://www.vgmuseum.com/scans/psx2/jak3_front.JPG

http://image.com.com/gamespot/images/bigboxshots/1/938611_85533_front.jpg

Come sue away come sue away with me dun dun dun :texaschain:

[Iron Draggon]

Looks like we will have a happy ending after all. Activision agreed to change the cover art and the revamped image is contained within: http://www.gamedaily.com/articles/news/activision-changes-baja-artwork-thq-drops-lawsuit/?biz=1

WOOHOO! another RARE artwork for me! and WAY better than the NEW art!