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The stakes have been raised in a dispute over a fictional Star Wars card game — the one in which Han Solo won the Millennium Falcon from Lando Calrissian — as a video game maker argues Lucasfilm can’t trademark a product that doesn’t actually exist.
Disney’s Lucasfilm in December sued Ren Ventures for trademark and copyright infringement and unfair competition, claiming the company sought to capitalize on franchise fandom by launching a “Sabacc” mobile game app prior to the 2015 release of Star Wars: The Force Awakens. Sabacc was first introduced into Star Wars canon in 1978, and Lucasfilm claims it or its licensees have used the mark in everything from card games to comic books to theme parks since then.
Ren is asking the court to toss all the claims related to trademark infringement — arguing that Lucasfilm doesn’t own rights to Sabacc.
“Plaintiffs allege trademark use of ‘Sabacc‘ by using it as the name of a fictional card game within Star Wars films, movies, and other expressive works,” writes attorney James Rosini. “This is not plausible. Trademarks identify and distinguish the source of goods and services in commerce. As a matter of logic, it is impossible to offer fictional goods and services in commerce because they do not exist.”
Ren points to the dispute between Fortres Grand and Warner Bros. over the “Clean Slate” software referenced in The Dark Knight Rises. There, Warners was accused of “reverse confusion” because Selina Kyle was told in the 2010 film the software didn’t exist, but, in reality, Fortres had been making a product under that name since 2000. Both an Indiana federal judge and the 7th U.S. Circuit Court of Appeals ruled in Warners‘ favor.
“Here, Plaintiffs use ‘Sabacc‘ in Star Wars films, movies, television shows, comic books, novels, and dictionaries as the name of a card game,” writes Rosini. “However, like the ‘clean slate’ software program in the film The Dark Knight Rises, the ‘Sabacc‘ card game in Star Wars expressive works is fictional and, thus, does not exist in commerce. Accordingly, just as ‘clean slate’ did not function as a mark for a fictional software program in The Dark Knight Rise [sic], ‘Sabacc‘ does not function as a mark for a fictional card game in Star Wars expressive works.”
A hearing on the motion, which is posted in full below, is set for April 5.
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