Court denies Ubisoft's motion for a temporary
restraining order and preliminary injunction against OG's
"Get Up and Dance"
Though it's likely that most self-styled "hard
core" gamers (myself included) tend to eschew dance-based
video games, their popularity is undeniable, as is the fact that
they continue to produce huge profits for video game developers and
publishers. Currently leading the charge is Ubisoft and its Just Dance franchise, which launched
on the Wii in 2009 and continues to be a big seller with the
cross-platform release of Just Dance 3 in October.
Unsurprisingly given the success of the genre, a number of
competitors have entered the market (most notably,
Microsoft/Harmonix's Dance Central which has been hailed
by many critics as the best game for the Kinect ).
During E3 2011, OG International Ltd. announced that it too
would be entering the dance-based game market with its own entry,
Get Up and Dance. Following this announcement, Ubisoft
began corresponding with OG regarding possible claims of copyright
and trade dress infringement and indicated that it would file suit
no later than October, 2011. OG then filed suit for declaratory
judgment on October 7, 2011, following which Ubisoft countered with
a motion for a temporary restraining order and preliminary
injunction requesting that the court enjoin the release of Get
Up and Dance prior to its scheduled release in early November,
2011. In particular, Ubisoft claimed that OG has violated its
copyrights and trade dress in Just Dance by copying two
key visual elements that Ubisoft argued distinguish the Just
Dance series from other dance-based video games on the market,
namely, its "avatar" and "instructor"
In a decision delivered on October 26, 2011, Justice Charles R.
Breyer of the United States District Court denied Ubisoft's
request for a temporary restraining order and preliminary
injunction, holding that "Ubisoft has failed to make a clear
showing that it is entitled to such extraordinary relief. While its
claims are not implausible, it has not demonstrated a clear
likelihood of success on the merits, nor a clear showing of
irreparable harm. Moreover, the balance of the hardships do not
clearly favor Ubisoft, thus even serious questions on the merits
are not sufficient to grant injunctive relief."
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