Another Hypo
Note: We (the IP Section of the California Lawyers Association) used this hypo for a mock trial in October 2018, involving high school students in San Francisco. A local law school graciously hosted the event, and the students found it quite worthwhile. Law professors and IP Section members helped prep the students, and a retired judge judged the arguments. Enjoy.
Roxy and Winston attend the same high school in San Francisco and are members of the school’s technology club, which meets after school each day to develop new video games and to play FORTNITE, a popular build-and-battle game.? Roxy and Winston love FORTNITE, playing and watching YouTubers, like Ninja, crush it for hours each day.? One Saturday, when Roxy and Winston were playing FORTNITE at Winston’s house, Winston’s mom, quite incisively, pointed out: “As you’re both technology whizzes, and know how to code, why don’t you do something useful and create your own video game? You might even make a few bucks doing it.”? Winston thought about it, and for the first time, agreed with his mom.? Roxy was game as well.?
Roxy and Winston decided the new game should be based on FORTNITE, but it would be much better. They considered various names, including FORTDAY, MINEFORT, and FORTNITE GO (combining the best aspects of FORTNITE and POKEMON GO), before agreeing on FORTDAY. ?Rather than landing on an island, in FORTDAY players would land in the middle of a futuristic city, set in 2118.? Rather than jumping from a battle bus, in FORTDAY players would jump from a flying taxi, with a brief sample of God’s Plan (Drake) in the background as the player first touches ground and begins his or her battle.? Upon landing, rather than starting with a pick ax, in FORTDAY players start with jackhammers to destroy streets, bridges, and buildings and can select other equipment for fights. ?In FORTNITE, with V Bucks players can buy emotes, skins, and gliders, while in FORTDAY with D Bucks players can buy dances, outfits, and parachutes.? Like FORTNITE, FORTDAY would be available in single and multi-player editions, but unlike FORTNITE, FORTDAY players, when playing the game outside, will be able to capture additional resources at FORTDAY stops, which might be in parks or other public spaces (including schools).
Roxy and Winston code FORTDAY from scratch and develop the artwork with the help of a few classmates, Wilson and Kaya.? After one month of intensive beta testing at Winston’s and Roxy’s homes, the two finish the game, form a company called Extraordinary Games, and release the games in the AppStore and GooglePlay. Within days, FORTDAY is a major success, with a million users worldwide.? One afternoon, when Roxy arrives home, she finds a cease-and-desist letter (for trademark infringement) from a company called Epic Games, the creator of FORTNITE.? She informs Winston and begins to wonder, as well, about the sample of God’s Plan in FORTDAY.? ??
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