Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 1 of 19
`
`' Eric A. Buresh (pro hac vice to be filed)
`
`eburesh@shb.com
`Michelle L. Maniott (pro hac vice to be filed)
`mlmaniott~,shb.com
`Paul Hart (pro hac vice to be filed)
`hart@,shb.com
`1 :HOOK, HARDY & BACON, L.L.P.
`2555 Grand Boulevard
`1 Kansas City, MO 64.1 08
`Telephone: (8 16) 474-6550
`1 Facsimile: (8 16) 42 1-5547
`
`1 Andrew L. Chang (SBN: 222309)
`achang@shb.com
`SHOOK. HARDY & BACON L.L.P.
`
`One ~ o n t ~ o m e r ~ , Suite 2700
`San Francisco, California 94 104-4505
`Telephone: (4 15) 544- 1900
`Facsimile: (4 15) 39 1 -028 1
`
`Attorneys for Defendants
`UBISOFT ENTERTAINMENT and
`UBISOFT, INC.
`
`I I
`I I
`
`UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`OG INTERNATIONAL LTD. and 0-GAMES,
`INC.,
`
`Case No. 1 1 -cv-4980
`
`Plaintiffs,
`
`UBISOFT ENTERTAINMENT and
`UBISOFT, INC.,
`
`UBISOFT ENTERTAINMENT AND
`UBISOFT, INC'S COUNTERCLAIM AND
`ANSWER
`
`DEMAND FOR JURY TRIAL
`
`Defendants.
`
`1
`1
`1 1
`)I
`11 counterclaim against OG International Ltd. and 0-Games, Inc. (collectively, "OG"), and answer
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`UBISOFT'S COUNTERCLAIM AND ANSWER
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`Defendants Ubisoft Entertainment and Ubisoft, Inc. (collectively, "Ubisoft") hereby
`
`ANSWER AND COUNTERCLAIM
`
`

`

`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 2 of 19
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`UBISOFT'S CLAIMS AGAINST OG
`
`Factual Backeround
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`1.
`
`Ubisoft seeks to immediately stop OG's improper efforts to capitalize on the success
`
`of Ubisoft's highly popular Just Dance series of dance-based video games.
`
`2.
`
`L%isoft Entertainment develops the Just Dance series of dance-based video games.
`
`LTbisoft, Inc. distributes the Just Dance series of video games in the United States. The Just Dance
`
`series of games allow players to interact with the game by physically performing dance routines
`
`according to instructions provided by the games.
`
`3.
`
`Ubisoft released Just Dance for the Nintendo Wii video game platform in Novembe~
`
`2009 to significant commercial success. Ubisoft built upon that success with Just Dance 2, released
`
`in October 2010, which became the largest selling third-party game for the Nintendo Wii platform.
`
`To date, Ubisoft has shipped more than 16 million copies of the Just Dance series worldwide.
`
`4.
`
`The franchise continues as Ubisoft released Just Dance 3 in the United States on
`
`October 7, 201 1. Just Dance 3 is currently available on the Nintendo Wii and Microsoft Xbox 360
`
`video game platforms, and will be released for the Sony Playstation 3 platform later this year.
`
`5.
`
`OG International Ltd. and 0-Games, Inc. plan to release their first entry in the dance-
`
`based video game genre, Get Up and Dance, in the United States on or about November 1, 201 1.
`
`Ex. A . Get Up and Dance will be available on both the Nintendo Wii and Sony Playstation 3 video
`
`game platforms.
`
`6.
`
`As detailed below, OG's Get Up and Dance game copies key elements of expression
`
`from the Just Dance series that are unique to Ubisoft's popular video game franchise, despite the
`
`fact that those elements could have been expressed in innumerable different ways that would not
`
`infringe Ubisoft's copyrighted works and trade dress.
`
`7.
`
`If released, OG's Get Up and Dance will compete directly with Ubisoft's Just Dance
`
`series of games. Get Up and Dance is currently being marketed as a pre-release in the same
`
`marketing channels as the Just Dance series, and will be offered for sale from the same national
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`2
`ANSWER AND COUNTERCLAIM
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 3 of 19
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`retailers. Ex. A (Gamestop Pre-Release Order; Wal-Mart Pre-Release Order); Ex. B (Just Dance j
`
`from Wal-Mart; Just Dance 3 from Game Stop).
`
`8.
`
`If Get Up and Dance is released in the United States as planned on November 1:
`
`201 1, Ubisoft will be irreparably harmed.
`
`Procedural Background
`
`1.
`
`This lawsuit involves Ubisoft's claims against OG for copyright infringement, trade
`
`dress infringement, and unfair competition.
`
`2.
`
`In an effort to resolve these claims without litigation, Ubisoft began corresponding
`
`with OG in August 201 1. After OG repeatedly refused to address Ubisoft's concern with in-game
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`content in Get Up and Dance, counsel for Ubisoft sent a Cease and Desist demand and stated,
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`clearly and explicitly, that Ubisoft would file a lawsuit no later than October 10, 201 1 if OG would
`
`not agree to modify its game:
`
`You must either modify the game to remove, at a minimum, the similarities with Just Dance
`
`outlined above, or stop distribution altogether. If you refuse to do so, Ubisoft will file suit I
`
`for copyright infringement, unfair competition, and trade dress infringement no later than
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`October 10,201 1.
`
`11
`~
`
`Ubisoft later clarified that, because the federal court was scheduled to be closed on
`3.
`October 10,201 1 for a federal holiday, "Ubisoft will file suit no later than October 1 1,201 1 ."
`
`4.
`
`Rather than seek to remedy Ubisoft's copyright, trade dress, and unfair competition
`
`claims, OG chose a race to the courthouse. On October 7,201 1 - four days before the specified date
`
`on which Ubisoft had informed OG it would file suit if the parties could not reach an accord - OG
`
`filed a declaratory judgment action against Ubisoft for the very claims that Ubisoft informed OG ii
`
`would be filing. As of the date of this filing, OG still has not informed Ubisoft that it filed the
`
`instant lawsuit.
`
`5.
`
`Because Ubisoft provided OG with a specific, concrete indication that it would file
`
`suit by October 11, 201 1 if the parties had not reached an accord, OG's race to the courthouse is
`
`anticipatory and improper. See Z-Line Designs, Inc. v. Bell'O Int'l LLC, 21 8 F.R.D. 663, 665 (N.D.
`
`3
`ANSWER AND COUNTERCLAIM
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 4 of 19
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`Cal. 2003) ("A suit is anticipatory when the plaintiff filed upon receipt of specific, concrete
`
`indications that a suit by defendant was imminent.").
`
`6.
`
`Despite OG's improper tactics, Ubisoft's chief concern is to immediately prevent the
`
`illegal release of OG's Get Up and Dance video game, which is currently set to be released on
`
`November 1, 201 1 in the United States. Because OG, by filing this action, has consented to
`
`jurisdiction and venue in this Court and eliminated potential delays associated with service of
`
`process on a United Kingdom corporation, Ubisoft will expeditiously pursue its claims against OG
`
`in this action. However, Ubisoft is the true plaintiff in this action, and Ubisoft reserves its right to
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`challenge OG's assertion of declaratory judgment jurisdiction.
`
`Parties
`
`7.
`
`Defendant Ubisoft Entertainment is a French corporation with its principal place of
`
`business in Montreuil-sous-Bois, France.
`
`8.
`
`Defendant Ubisoft, Inc. is a California corporation with its principal place of business
`
`at 625 3rd Street, San Francisco, California, 94107.
`
`9.
`
`Plaintiff OG International Ltd. is a corporation registered with the United Kingdom
`
`Registrar of Companies with its registered address at 5 Jupiter House, Calleva Park, United
`
`Kingdom, RG7 8NN and its principal place of business at 17 Bridle Close, Finedon Road Industrial
`
`Estate, Wellingborough, Northants, United Kingdom.
`
`10.
`
`Plaintiff 0-Games, Inc. is a Delaware corporation, with its principal place of business
`
`at 27 1 1 Centerville, Road, Suite 400, Wilmington, Delaware 19808.
`
`1 1. According to OG's declaratory judgment complaint, OG is "the author and producer"
`
`of Get Up and Dance.
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`JURISDICTION AND VENUE
`
`12.
`This court generally has subject matter jurisdiction over actions for copyright
`infringement under the United States Copyright Laws, 15 U.S.C. $5 501 et seq., trade dress
`
`infringement under the Lanham Act, 15 U.S.C. $ 1051 et seq., and unfair competition under
`
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`ANSWER AND COUNTERCLAIM
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 5 of 19
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`California Business and Professions Code $3 17200 et seq. under 28 U.S.C. $5 1331, 1338, and
`
`1367.
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`FACTUAL ALLEGATIONS
`
`13. Multiple dance-based video games exist in the market place both before and
`
`contemporaneous with Ubisoft's Just Dance series of games.
`
`14.
`
`The primary protectable visual elements in nearly all games of this genre are (1) a
`
`central dancing figure, or "avatar," that performs the dance routine players attempt to emulate and
`
`(2) "instructor" elements that identify the particular dance moves players must attempt to perform
`
`during the game. These prominent visual elements garner the visual focus of both players and non-
`
`players alike, and are thus key identifying features that serve to distinguish between competing
`
`games of the genre.
`
`Ubisoft's Unique and Oripinal Protected Expression
`
`15.
`
`Ubisoft's Just Dance series is set apart from competitors by its unique, original, and
`
`immediately identifiable expression of its "avatar" and "instructor" elements.
`
`Ex. C (Just Dance Screenshots).
`
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`ANSWER AND COUNTERCLAIM
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 6 of 19
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`11 and are consistent across Just Dance, Just Dance 2, and Just Dance 3. Distinct from the many
`I I different expressions of avatars in competing games (examples depicted below), Ubisoft's avatars
`11 depict partially silhouetted stylized dancer with white skin and bright clothing. These expressive I
`I I characteristics create a unique look that sets the Just Dance games apart from other games in the
`I I genre, as represented below.
`I
`
`Avatars from Ubisoft's Just Dance series of video games
`
`18
`
`.
`
`19
`
`Avatars in other dance-based games
`
`L
`
`27
`
`28
`
`I
`
`I
`
`I
`
`Ex. C (Just Dance Screenshots); Ex. D (Competing Game Screenshots).
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`21 8794 vl
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`ANSWER AND COUNTERCLAIM
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 7 of 19
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`17. Ubisoft also has developed unique, original, and
`
`immediately identifiable
`
`"instructors" that relay particular dance moves to the player. Again, Ubisoft's instructors are distinct
`
`from those used in other games in the genre, as shown below.
`
`Ex. C (Just Dance Screenshots); Ex. D (Competing Game Screenshots).
`
`18. Ubisoft owns the copyrights in its original and creative expression incorporated in
`
`each of the Just Dance games. Further, Ubisoft Entertainment filed copyright registration
`
`applications for both Just Dance and Just Dance 2 with the Copyright Office on July 1 1, 20 1 1. Ex.
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`E (Copyright Registrations). These applications are currently pending and are presumed valid upon
`
`OG's Get Up and Dance Copies Without Authoritv Ubisoft's C o ~ v r i ~ h t e d Works
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`7
`ANSWER AND COUNTERCLAIM
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 8 of 19
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`19. OG has announced the release of their first entry in the dance-based video game
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`genre, Get Up and Dance, in the United States on November 1, 201 1 for both the Nintendo Wii and
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`Sony Playstation 3 video game platforms.
`
`20.
`
`Despite the fact that OG could have expressed its avatars and instructors in
`
`innumerable different ways as demonstrated by other games in the genre, OG opted instead to copy
`
`Ubisoft's copyrighted works nearly identically.
`
`21.
`
`Like Ubisoft's games, OG chose to use avatars that depict partially silhouetted
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`stylized dancer with white skin and bright clothing. Accordingly, they appear nearly identical to and
`I I substantially the same as Ubisoft's protected expression:
`
`Get UD and Dance
`
`Ex. C
`
`(Just Dance Screenshots); Ex. F (Get Up and Dance Screenshots).
`
`22. OG similarly chose to copy Ubisoft's instructors:
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`ANSWER AND COUNTERCLAIM
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 9 of 19
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`l4 11 Ex. C (Just Dance Screenshots); Ex. F (Get Up and Dance Screenshots).
`l 5 11
`l6 11 demonstrates copying of these key elements of protectable expression by OG and thus the
`11 copyrighted works themselves.
`
`A comparison of OG's Gel Up and Dance with Ubisofi's Just Dance series
`
`23.
`
`FIRST CAUSE OF ACTION
`
`(Federal Copyright Infringement)
`(17 U.S.C. 8 501 et seq.)
`
`24.
`
`Ubisoft realleges and incorporates by reference the allegations set forth in paragraphs
`
`1-23 above.
`
`2o 11
`11
`
`22
`
`25.
`
`At all relevant times, Ubisoft has owned all applicable rights, titles and interest in and
`
`23
`
`26
`
`24 11 to Ubisofi's copyrighted works Just Dance, Just Dance I , and Just Dance 3.
`25 11
`
`26.
`
`Ubisoft has complied in all respects with Title 17 of the United States Code and has
`
`filed for copyright registrations for Just Dance and Just Dance 2 with the Copyright Office.
`
`2 7
`
`28
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`21 8794 vl
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 10 of 19
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`27.
`
`If released in the United States, Get Up and Dance will infringe Ubisoft's
`
`copyrighted works by copying, using, andlor distributing Ubisoft's copyrighted works without the
`
`consent of Ubisoft and in disregard of Ubisoft's exclusive rights under copyright.
`
`28.
`
`On information and belief, OG has acted with full knowledge of Ubisoft's rights
`
`under copyright without regard for the damage Ubisoft will incur due to OG's activities.
`
`29.
`
`OG's planned actions demonstrate an intentional, willful, and malicious intent tc
`
`infringe upon Ubisoft's copyrights which, if not enjoined, will result in irreparable injury to Ubisoft.
`
`30.
`
`Ubisoft is entitled to immediate injunctive relief and damages in an amount to be
`
`proven at trial.
`
`SECOND CAUSE OF ACTION
`
`(Federal Trade Dress Infringement)
`(15 U.S.C. 5 1051 et seq.)
`
`3 1. Ubisoft realleges and incorporates by reference the allegations set forth in paragraphs
`
`1-30 above.
`
`32.
`
`Ubisoft's trade dress in its Just Dance series of games includes Ubisoft's creative
`
`expression of its avatars and instructors. The expression of these elements is non-functional and is
`
`an inherently distinctive indicator of origin that distinguishes the Just Dance series from other games
`
`in the genre.
`
`33.
`
`Ubisoft includes screen shots of its unique, original, and immediately identifiable
`
`avatars and instructors on the packaging of Just Dance, Just Dance 2 and Just Dance 3.
`
`34.
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`If OG's activities are not enjoined, the public will confuse OG's Get Up and Dance
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`with Ubisoft's Just Dance series, in part because (1) Ubisoft's trade dress is a strong indicator ol
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`xigin, (2) OG incorporates LJbisoft's trade dress nearly identically in Get Up and Dance, (3) OG's
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`Get Up and Dance will compete directly with Ubisoft's Just Dance series and will use common
`
`marketing channels, and (4) even before the release of Get Up and Dance, there is evidence of actual
`
`:onfusion.
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`ANSWER AND COUNTERCLAIM
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 11 of 19
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`35.
`
`On information and belief, OG has acted with full knowledge of Ubisoft's trade dress
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`rights without regard for the damage Ubisoft will incur due to OG's activities.
`
`36.
`
`OG's planned actions demonstrate an intentional, willful, and malicious intent to
`
`infringe upon Ubisoft's trade dress which will result in irreparable injury to Ubisoft.
`
`37.
`
`Ubisoft is entitled to immediate injunctive relief and damages in an amount to be
`
`proven at trial.
`
`THIRD CAUSE OF ACTION
`
`(Unfair Competition)
`(California Business and Professions Code 55 17200 et seq.)
`
`38.
`
`Ubisoft realleges and incorporates by reference the allegations set forth in paragraphs
`
`1-37 above.
`
`39.
`OG will engage in unlawful, unfair andlor fraudulent business acts and practices
`within the meaning of California Business and Professions Code $3 17200 et seq. Specifically, If
`
`n o t enjoined from releasing Get Up and Dance, OG will infringe Ubisoft's trade dress, causing
`1 consumer confusion, in violation of the Lanham Act.
`Ubisoft is entitled to immediate injunctive relief and damages in an amount to be
`40.
`
`proven at trial.
`
`REOUEST FOR RELIEF
`
`WHEREFORE, Ubisoft requests entry of judgment in its favor against OG as follows:
`
`A. Enter judgment that the release of OG's Get Up and Dance game will infringe Ubisoft's
`
`copyrights and Ubisoft's Just Dance trade dress;
`
`B. Preliminarily enjoin andlor temporarily restrain OG and its officers, directors, agents,
`
`employees, representatives, and all persons or entities acting in concert with OG, from
`
`releasing Get Up and Dance in the United States, thereby preventing infringement of
`
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`ANSWER AND COUNTERCLAlM
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 12 of 19
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`C. Permanently enjoin OG and its officers, directors, agents, employees, representatives, and all
`
`persons or entities acting in concert with OG, from infringing Ubisoft's copyrights and
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`Ubisoft's Just Dance trade dress;
`D. Award Ubisoft damages for OG's copyright infringement as provided under 17 U.S.C. 5 504,
`
`together with prejudgment and post-judgment interest;
`E. An accounting of OG's profits pursuant to 15 U.S.C. 5 1 1 17;
`F. A judgment trebling any damages award pursuant to 15 U.S.C. 5 1 1 17;
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`G. That OG account for and disgorge to Ubisoft profits realized by OG by reason of OG's
`
`unlawful acts herein alleged and that those profits be increased as provided by law;
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`H. Punitive damages as provided by law;
`
`I
`
`I. Award Ubisoft its costs of suit incurred herein, including its attorneys' fees as provided
`under 17 U.S.C. 5 505, 15 U.S.C. 5 1 1 17, and California Code of Civil Procedure 5 1021.5;
`
`J. Reasonable funds for future corrective advertising;
`
`K. That this Court retain jurisdiction of this action for the purpose of enabling Ubisoft to apply
`
`to the Court at any time for such further orders and interpretation or execution of any order
`
`entered in this action, for the modification of any such order, for the enforcement or
`
`compliance therewith and for the punishment of any violations thereof;
`
`L. Award to Ubisoft any such other and further relief as the Court may deem just, proper, and
`
`equitable under the circumstances.
`
`UBISOIT'S ANSWER TO OG's COMPLAINT
`
`Ubisoft hereby answers OG's Complaint for Declaratory Judgment of Non-
`
`Infringement and No Unfair Competition ("Complaint") as follows:
`
`1.
`
`Ubisoft admits that OG purports to file a declaratory judgment action of non-
`
`infringement and no unfair competition, but denies that OG has established declaratory judgment
`
`jurisdiction or states a meritorious claim. Ubisoft denies the remaining allegations of Paragraph 1.
`
`2.
`
`On information and belief, Ubisoft admits the allegations of Paragraph 2.
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`PARTIES
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 13 of 19
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`3.
`
`4.
`
`On information and belief, Ubisoft admits the allegations of Paragraph 3.
`
`On information and belief, Ubisoft admits that OG International and 0-Games USA
`
`develop and publish video games that are sold to individuals in this jurisdiction. Ubisoft lacks
`
`knowledge or information sufficient to form a belief about the truth of the remaining allegations of
`
`Paragraph 4, and therefore denies the same.
`
`5 .
`
`6.
`
`7.
`
`Ubisoft admits the allegations of Paragraph 5.
`
`Ubisoft admits the allegations of Paragraph 6.
`
`Ubisoft admits that it develops and publishes video games, which are distributed in
`
`the United States and sold to individuals within the jurisdiction of this Court. Ubisoft denies the
`
`remaining allegations of Paragraph 7.
`
`JURISDICTION AND VENUE
`
`8.
`Ubisoft admits that this Court has jurisdiction over federal questions pursuant to 28
`U.S.C. 4 133 1 and over copyright, trade dress, and unfair competition pursuant to 28 U.S.C. 4 1338,
`
`but denies that this Court has jurisdiction over OG's declaratory judgment claim. Ubisoft admits
`
`that this Court has supplemental subject matter jurisdiction over claims arising under California's
`unfair competition law pursuant to 28 U.S.C. 4 1367.
`
`9.
`
`Ubisoft does not contest that this Court has personal jurisdiction over Ubisoft, and
`
`fiu-ther admits that it conducts business in the State of California and within this district, and sells
`
`products, on the internet and otherwise, to California residents. Ubisoft denies the remaining
`
`allegations of Paragraph 9.
`
`10. Ubisoft does not contest that venue is proper in this district.
`
`1 1.
`
`Ubisoft denies that an actual case or controversy had arisen between the parties as of
`
`the filing of OG's declaratory judgment action on October 7,201 1. Ubisofi had previously informed
`
`OG that it would file suit for copyright infringement unfair competition, and trade dress
`
`infringement no later than October 1 1,201 1. Because Ubisoft provided OG with a specific, concrete
`
`indication that it would file a lawsuit by October 11, 201 1, OG's attempt to file this anticipatory
`
`lawsuit is improper. Ubisoft denies the remaining allegations of Paragraph 1 1.
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 14 of 19
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`CASE AND CONTROVERSY
`
`12. Ubisoft denies that an actual case or controversy had arisen between the parties as of
`
`the filing of OG's declaratory judgment action on October 7, 201 1. Ubisoft had previously informed
`
`OG that it would file suit for copyright infringement unfair competition, and trade dress
`
`infringement no later than October 1 1, 201 1. Because Ubisoft provided OG with a specific, concrete
`
`indication that it would file a lawsuit by October 11, 201 1, OG's attempt to file this anticipatory
`
`lawsuit is improper. Ubisoft specifically denies that OG is entitled to have a declaration pursuant to
`
`the Declaratory Judgment Act, 28 U.S.C. $$ 2201 and 2202. Ubisoft denies the remaining
`
`allegations of Paragraph 12.
`
`FACTS
`
`13. On information and belief, Ubisoft admits that OG developed and produced a video
`
`game entitled Get Up and Dance, but denies that it is original. LTbisoft denies the remaining
`
`allegations of Paragraph 1 3.
`
`14. Ubisoft denies that OG independently created each element of the Get Up and Dance
`
`video game. Ubisoft lacks knowledge or information sufficient to form a belief as to the remaining
`
`allegations of Paragraph 14.
`
`15. Ubisoft lacks knowledge or information sufficient to form a belief as to the
`
`allegations of Paragraph 1 5.
`
`16. Ubisoft admits that Get Up and Dance is marketed in the United States through OG's
`
`11 website, as well as through websites of retailers in the United States. Ubisoft further admits on1
`
`information and belief that Get Up and Dance is distributed in the United States through Crave
`
`Games, Inc.
`
`17. Ubisoft admits that its ownership in the copyright in Just Dance, Just Dance 2, and
`
`Just Dance 3 vested upon fixation of the works. LTbisoft further admits that it formally applied to
`
`register its copyrights in Just Dance and Just Dance 2 on July 11, 201 1. Ubisoft denies the
`
`remaining allegations of Paragraph 17.
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`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 15 of 19
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`18. Ubisoft lacks knowledge or information sufficient to form a belief as to the
`
`allegations of Paragraph 18.
`
`19.
`
`Lhisoft admits that it notified OG of its concerns with respect to the release of Get Up
`
`and Dance on multiple occasions, including letters dated August 16, 201 1, August 29, 20 1 1,
`
`September 27, 201 1, September 29, 201 1, and October 6, 201 1. Lhisoft denies the remaining
`
`allegations of Paragraph 19.
`
`20.
`
`Ubisoft admits that on September 29, 201 1, Ubisoft formally demanded that OG
`
`cease and desist from further publishing or distributing Get Up and Dance in its current form in the
`
`United States. Lhisoft plainly stated that "[ilf you refuse to do so, Ubisoft will file suit for copyright
`
`infringement, unfair competition, and trade dress infringement no later than October 10, 201 1."
`
`Ubisoft further admits that on October 6, 201 1, it informed OG in writing that due to federal court
`
`closure on October 10, 201 1, Ubisoft would be filing its lawsuit no later than October 11, 201 1.
`
`Ubisoft denies the remaining allegations of Paragraph 20.
`
`2 1. Ubisoft denies the allegations of Paragraph 2 1.
`
`22.
`
`23.
`
`24.
`
`25.
`
`26.
`
`Ubisoft denies the allegations of Paragraph 22.
`
`Ubisoft denies the allegations of Paragraph 23.
`
`Ubisoft denies the allegations of Paragraph 24.
`
`Ubisoft denies the allegations of Paragraph 25.
`
`Ubisoft denies the allegations of Paragraph 26. Ubisoft specifically informed OG
`
`that, absent a modification of the Get Up and Dance video game or its agreement to cease and desist
`
`from further publishing or distributing the game in the United States, Ubisoft would file a lawsuit
`
`against OG on October 1 1,201 1.
`
`COUNT I (DECLARATOY JUDGMENT OF NON-INFRINGEMENT OF
`
`COPYRIGHT UNDER THE COPYRlGHT ACT, 17 U.S.C. 6 101 ET SEQ.1
`
`27.
`
`Ubisoft restates and incorporates by reference the answers set forth in Paragraphs 1-
`
`26 above.
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`15
`ANSWER AND COUNTERCLAIM
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`

`

`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 16 of 19
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`11 infringement, and further admits that Ubisoft specifically informed OG that it would file a lawsuit
`I I for copyright infringement against OG no later than October 1 1, 201 1. Ubisoft denies the remaining
`I I allegations of Paragraph 28.
`I
`11
`
`29.
`
`Ubisoft denies that an actual, present, or justiciable controversy had arisen between
`
`the parties as of the filing of OG's declaratory judgment action on October 7, 201 1. Ubisoft had
`
`previously informed OG that it would file suit for copyright infringement unfair competition, and
`
`trade dress infringement no later than October 11, 201 1. Because Ubisoft provided OG with a
`
`specific, concrete indication that it would file a lawsuit by October 11, 201 1 , OG's attempt to file
`
`this anticipatory lawsuit is improper. Ubisoft therefore denies that OG is entitled to the issuance of a
`
`declaratory judgment. Ubisoft denies the remaining allegations of Paragraph 29.
`
`30.
`
`Ubisoft admits that OG purports to seek a declaratory judgment from this Court that
`
`their Get Up and Dance video game does not infringe Ubisoft's copyrights, but denies that OG states
`
`I I a meritorious claim and further denies that OG is entitled to a declaratory judgment.
`I
`3 1. Ubisoft admits that OG purports to seek a declaratory judgment from this Court that I
`1 1
`
`their Get Up and Dance video game does not infringe Ubisoft's copyrights, but denies that OG states
`
`a meritorious claim and further denies that OG is entitled to a declaratory judgment. LTbisoft
`
`specifically denies that Ubisoft's Just Dance video game is not protectable under the Copyright Act.
`
`Ubisoft denies the remaining allegations of Paragraph 3 1.
`
`COUNT I1 (DECLARATOY JUDGMENT OF NON-INFRINGEMENT
`
`OF TRADE DRESS UNDER THE LANHAM ACT, 15 U.S.C. 6 1051 ET SEO.)
`
`32.
`
`Ubisoft restates and incorporates by reference its answers set forth in Paragraphs 1-
`
`I
`
`33.
`
`Ubisoft admits that OG's Get Up and Dance video game constitutes trade dress
`
`I I
`I I
`I I
`I I
`
`infringement, and further admits that Ubisoft specifically informed OG that it would file a lawsuit
`
`for copyright infringement against OG no later than October 1 1, 20 1 1. Ubisoft denies the remaining
`
`allegations of Paragraph 33.
`
`16
`ANSWER AND COUNTERCLAIM
`
`

`

`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 17 of 19
`
`2
`
`the parties as of the filing of OG's declaratory judgment action on October 7, 201 1. Ubisoft had
`
`4
`
`trade dress infringement no later than October 1 1, 201 1. Because Ubisoft provided OG with a
`
`specific, concrete indication that it would file a lawsuit by October 11, 201 1, OG's attempt to file
`
`6
`
`this anticipatory lawsuit is improper. Ubisoft therefore denies that OG is entitled to the issuance of a
`
`7 declaratory judgment. Ubisoft denies the remaining allegations of Paragraph 34.
`
`35.
`
`Ubisoft admits that OG purports to seek a declaratory judgment from this Court that
`
`9
`
`their Get Up and Dance video game does not infringe Ubisoft's trade dress, but denies that OG
`
`10
`
`states a meritorious claim and further denies that OG is entitled to a declaratory judgment.
`
`I I 3 previously informed OG that it would file suit for copyright infringement, unfair competition, and
`I I
`I I 5
`I I
`I I
`I I
`11
`I I
`I I
`l 1 II
`I I
`I I
`I I
`14
`specifically denies that Ubisoft's Just Dance video game is not protectable trade dress under the
`15 11 Lanham Act. Ubisoft denies the remaining allegations of Paragraph 36.
`I
`l 6 11
`COUNT I11 (DECLARATORY JUDGMENT OF NO UNFAIR COMPETITION
`
`I
`
`36.
`
`Ubisoft admits that OG purports to seek a declaratory judgment from this Court that
`
`12
`
`their Get Up and Dance video game does not infringe Ubisoft's trade dress, but denies that OG
`
`13
`
`states a meritorious claim and further denies that OG is entitled to a declaratory judgment. Ubisoft
`
`UNDER THE LANHAM ACT. 15 U.S.C. 6 1051 ET SEO.1
`
`37.
`
`Ubisoft restates and incorporates by reference its answers set forth in Paragraphs 1-
`
`36, above.
`
`38.
`
`Ubisoft admits that OG's Get Up and Dance video game constitutes unfair
`
`competition, and hrther admits that Ubisoft specifically informed OG that it would file a lawsuit for
`
`copyright infringement against OG no later than October 11, 201 1. Ubisoft denies the remaining
`
`I I allegations of Paragraph 38.
`
`I
`11 previously informed OG that it would file suit for copyright infringement unfair competition, and1
`
`39.
`
`Ubisoft denies that an actual, present, or justiciable controversy had arisen between
`
`the parties as of the filing of OG's declaratory judgment action on October 7, 201 1. Ubisoft had
`
`trade dress infringement no later than October 11, 201 1. Because Ubisoft provided OG with a
`
`17
`ANSWER AND COUNTERCLAIM
`
`20
`
`2 1
`
`22
`
`2 3
`
`24
`
`2 5
`
`26
`
`27
`
`2 8
`
`

`

`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 18 of 19
`
`specific, concrete indication that it would file a lawsuit by October 11, 201 1, OG's attempt to file (
`this anticipatory lawsuit is improper. Ubisoft therefore denies that OG is entitled to the issuance of a
`
`declaratory judgment. Ubisoft denies the remaining allegations of Paragraph 39.
`
`40.
`
`41.
`
`Ubisoft denies the allegations of Paragraph 40.
`
`LJbisoft admits that OG purports to seek a declaratory judgment from this Court that
`
`OG's development, publication, marketing and pending distribution and sale of Get Up and Dance
`
`does not constitute unfair competition, but denies that OG states a meritorious claim and further
`
`denies that OG is entitled to a declaratory judgment. Ubisoft denies the remainder of the allegations
`
`of Paragraph 4 1.
`
`COUNT IV (DECLARATORY JLTDGMENT OF NO UNFAIR COMPETITION
`
`UNDER CALIFORNIA BUSINESS & PROFESSIONS CODE 6 17200 ET SEO.1
`
`42.
`
`LJbisoft restates and incorporates by reference its answers set forth in Paragraphs 1-
`
`4 1, above.
`
`43.
`
`Ubisoft admits that OG's Get Up and Dance video game constitutes trade dress
`
`infringement, and further admits that Ubisoft specifically informed OG that it would file a lawsuit
`
`for copyright infringement against OG no later than October 1 1, 201 1. Ubisoft denies the remaining
`
`allegations of Paragraph 43.
`
`44.
`
`Ubisoft denies that an actual, present, or justiciable controversy had arisen between
`
`the parties as of the filing of OG's declaratory judgment action on October 7, 201 1. Ubisoft had
`
`previously informed OG that it would file suit for copyright infringement unfair competition, and
`
`trade dress infringement no later than October 11, 201 1. Because Ubisoft provided OG with a
`
`specific, concrete indication that it would file a lawsuit by October 11, 201 1, OG's attempt to file
`
`this anticipatory lawsuit is improper. Ubisoft therefore denies that OG is entitled to the issuance of a
`
`declaratory judgment. Ubisoft denies the remaining allegations of Paragraph 44
`
`45.
`
`46.
`
`47.
`
`Ubisoft denies the allegations of Paragraph 45.
`
`Ubisoft denies the allegations of Paragraph 46.
`
`Ubisoft denies the allegations of Paragraph 47.
`
`18
`ANSWER AND COUNTERCLAIM
`
`

`

`Case 3:11-cv-04980-CRB Document 6 Filed 10/12/11 Page 19 of 19
`
`48. Ubisoft admits that OG purports to seek a declaratory judgment from this Court thal
`
`DGYs development, publication, marketing and pending distribution and sale of Get Up and Dance
`
`joes not constitute unfair competition, but denies that OG states a meritorious claim and hrther
`
`3enies that OG is entitled to a declaratory judgment. Ubisoft denies the remainder of the allegations
`
`3f Paragraph 48.
`
`PRAYER FOR RELIEF
`
`Ubisoft denies that OG is entitled to any relief in connec