The lawsuits are beginning to fly in the battle between The Ant Commandos (TAC), who design and manufacture gaming peripherals and RedOctane, publisher of Guitar Hero
and subsidiary of Activision.
Activision threw out the first volley
when they sued TAC for "unfair competition, trademark infringement, copyright infringement, unfair and deceptive trade practices, false advertising, unjust enrichment and more." Now TAC has filed a counter suit claiming that Activision and RedOctane "copied the identifiable trade dress of the [guitar] controller from its developer and part owner of TAC, Topway Electrical Appliance, Co."
The photo you see at top is the "Magical Guitar," which according to TAC was designed in 1999 for Konami's GuitarFreak. TAC claims between 2001 and 2004 that representatives from RedOctane, including the CEO and top sales manager at the time, visited the Topway factory where the "Magical Guitar" was being produced asking questions regarding its design. TAC also claims that between 2002 and 2004, RedOctane "purchased several hundred of the Magical Guitars from Topway prior to producing the [SG] controllers themselves." In 2005 RedOctane produced the Guitar Hero
SG controller -- if the picture submitted as evidence in the lawsuit holds up in court, the only obvious identifiable design difference between the SG controller and the "Magical Guitar" is the missing whammy bar. However, TAC and Topway do not have a U.S. patent
on the "Magical Guitar" controller.
In addition to the suit, TAC has filed for an injunction asking Activision and RedOctane from infringing on the "trade dress" developed by Topway and separating the Guitar Hero
bundle to allow for fair competition. Currently, the SG controller is bundled with Guitar Hero.
RedOctane did not return requests for comment. Full press release after the break.See also: RedOctane rocks the courthouse
Official press release:The Ant Commandos (TAC) Files Counter Claim Against RedOctane and ActivisionSeptember 21, 2006- Chino, CA- The Ant Commandos, Inc. (TAC) announced today it filed a counter claim in the United States District Court for the Central District of California against Activision Publishing, Inc. and RedOctane, Inc. The counter claim alleges that both Activision and RedOctane are violating Federal Antitrust legislation pertaining to the Guitar Hero game and controller bundle. In addition, the counter claim alleges that both Activision and RedOctane copied the identifiable trade dress of the controller from its developer and part owner of TAC, Topway Electrical Appliance, Co. More specifically, the cross complaint alleges that this design was copied by RedOctane in developing the Guitar Hero SG controller and alleges that RedOctane developed the Guitar Hero game around Topway's identifiable trade dress. RedOctane allegedly copied the color, shape, and placement of the five fret buttons located on the controller.In addition to the counter claim, TAC has filed for a preliminary injunction asking the federal court to enjoin Activision and RedOctane from further infringing on the trade dress originally developed by Topway. The injunction also asks the court to allow for fair competition in the market by enjoining the sale of the game/controller "bundle" so that consumers no longer have to purchase both the Guitar Hero game and the RedOctane controller but rather may purchase the game and have their choice on which controller to buy. To date, no injunction against TAC has been filed in this matter.Topway originally designed and manufactured the Magical Guitar, a guitar controller for use with PlayStation® in 1999. TAC alleges in its cross complaint, among other things, that RedOctane purchased several hundred of the Magical Guitars from Topway prior to producing the controllers themselves. Furthermore, the cross complaint alleges that top management at RedOctane visited the Topway factory on numerous occasions and specifically inquired about Topway's trade dress design.Hong Lip Yow, owner of The Ant Commandos, Inc., says TAC will continue to design, manufacture, and distribute The Guitar Mania Line despite the original claims filed by Activision Publishing, Inc. and RedOctane, Inc."TAC will continue to make and improve on innovative peripherals to provide gamers with a choice. I strongly believe consumers should have their own choice, especially when it comes to choosing a better quality and better designed product," Hong Lip Yow stated.TAC is dedicated to making superior products for the video game industry. TAC's guitar controllers offer gamers wireless controlling options. The TAC controllers also feature a back lit strum bar, are heavier and stronger than its competitor's controllers, and are beautifully colored with quality metallic paint. About The Ant CommandosTAC is a leading designer, manufacturer, and distributor of innovative peripherals and accessories for the interactive entertainment industry. TAC's innovative designs follow our fundamental belief of Simplicity, Interactivity, and Mobility. TAC's commitment to pushing the design limits in these dimensions has spawned many new and exciting products for game enthusiasts worldwide.