Intellectual Property Law

Online game company sues bot software company and wins

By Chris Bennett, Tudor Carsten, Michael R. Coburn, Sarah Dale-Harris, Pablo Guzman, Danielle (Dani) Lemon, Chris Metcalfe and David Spratley

In an unprecedented case in German jurisprudence, the operator of an online game sued the provider of a bot software, and won. The court granted a cease and desist order, so the bot must no longer be distributed.

1. Facts of the case:

The plaintiff developed and operates one of the worlds most popular massively multiplayer online brower based strategy games. The plaintiff's online game is free to play in a basic version, but requires purchasing so called premium functions in order for the user to be able to use special and enhanced features of the game. The Terms of Service of the game expressly prohibit the use of cheating software or bot software.

The defendant offered a bot software on the Internet by using a website which was available in German and various other languages. The bot software was specifically configured to interfere with the plaintiff's online game. By using the bot software, the user was enabled to use game functions which the plaintiff's online game either did not have at all or which were only available in the game as a so called premium feature with costs. Therefore, the use of the bot did not only extensively interfere with the gameplay and the game balance of the defendant's online game, but also caused a potential loss of income for the plaintiff because users of the bot did not have to purchase the plaintiff's premium functions anymore.

The use of the defendant's bot software was free for a trial period, but required a license for a valuable consideration after that. On its website, the defendant used the plaintiff's registered trademark and also graphical material which was taken from the plaintiff's online game.

2. The court's decision:

The court held that offering and selling the bot by the defendant constitutes an illegitimate exploitation of the plaintiffs reputation in the sense of "selling of compatible products that interfere with a third party line of products" and an unfair interference with the plaintiff's business model under Section 4 No. 9b and Section 10 the German Unfair Competition Act.

The court was of the opinion that the defendant intentionally undermines the plaintiff's business model which - since the basic version of the game is free to play - is based on selling premium functions for the online game. Users of the defendant's bot software would stop purchasing premium functions for the plaintiff's online game if such functions were also available by using the bot software.

Further, the plaintiff's Terms of Service for the online game expressly prohibit the use of cheating software or bot software. Consequently, the court held that the defendant entices the users of the plaintiff's online game to breach their respective contract with the plaintiff over the use of the game by offering prohibited software and enabling such breach of contract.

Lastly, the court held that by using the plaintiff's trademark and graphical material on the website, the defendant infringes on the plaintiff's trademark rights and on the plaintiff's copyright.

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Full post as published by Video Game Law Blog on July 16, 2009 (boomark / email).