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Lawsuit alleges New York Lottery and Scientific Games infringed trademark

Insider BuzzInsider Buzz: Lawsuit alleges New York Lottery and Scientific Games infringed trademark

Small company says N.Y. Lottery stole game concept and title

Press Release: November 21, 2008

NEW YORK, NY — NEW YORK, NY—According to Balestriere Lanza PLLC, the Gameologist Group LLC (Gameologist), a New Jersey based and minority-owned small business, filed a complaint in New Jersey Federal District Court, suing the New York Lottery (the Lottery) and Scientific Games, Inc. (Scientific Games), for infringing on its trademark.

Gameologist developed the lottery scratch-off game BLING BLINGTM (the Mark) and duly registered the Mark with the United States Patent and Trademark Office in 2003. Gameologist met with representatives of Scientific Games in 2003 and had correspondence with the Lottery in 2004. According to the Complaint filed today, both companies pretended that they were not interested in the Mark, claiming, at the time, that it was "too ethnic" and "did not meet lottery salability standards." Yet, the Complaint states that over the following three years, the Lottery and Scientific Games conspired to use Gameologist's Mark without entering into a licensing agreement with Gameologist — infringing on Gameologist's protected intellectual property.

According to the Complaint, in December 2007, the Lottery released a new instant scratch-off game called "BADA BLING," which was virtually an exact replica of Gameologist's concept and utilized the dominant trademarked word BLING. Additionally, the new game was manufactured by none other than Scientific Games, one of the Lottery's primary vendors. The Complaint states that upon discovering the infringement, Gameologist approached the Lottery to resolve the situation amicably, seeking a reasonable licensing agreement for the use of its Mark. However, according to the Complaint, the Lottery refused. Instead, the Complaint says, they encouraged Gameologist to sue, which the small business was forced to do.

Gameologist's lawyer, Craig Stuart Lanza of New York's Balestriere Lanza PLLC, said, "This small company is due millions of dollars in damages under the Lanham Act. This case is about two large companies stealing a small business's protected property, believing, wrongly, that Gameologist would not have the means to sue. We look forward to pushing this case to trial to obtain justice for Gameologist, and to give large companies pause before they try stealing intellectual property developed by small, hard-working companies simply trying to pursue the American dream."

The Lottery has a run rate of 16 million tickets for BADA BLING at $10.00 each, totaling one hundred and sixty million dollars in revenue for lottery. The Lottery retains 15% of revenue for administrative expenses, thus earning as much as $24 million in profits to be paid for administrative expenses, benefits and vendor fees. Last year, the Lottery had revenue in excess of seven billion dollars. Gameologist is suing the Lottery for its rightful share of the $24 million plus treble damages for willfully infringing on and abusing the Mark.

Gameologist Group LLC is a New Jersey based, game design company specializing in casino style games and gaming products.

Balestriere Lanza PLLC is a trials and investigations law firm. They represent individuals, companies and institutions in criminal and civil matters in trial and appellate courts, in intense negotiations, during arbitrations, and before grand juries, securities regulators, and government agencies. The firm is unique: unlike most firms, they combine a complex and sophisticated litigation background and hard-nosed negotiation experience with the willingness and ability to push cases to trial and win. Their offices are located at 225 Broadway, Suite 2900, New York, NY 10007.

Press Release

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8 comments. Last comment 8 years ago by KY Floyd.
Page 1 of 1
MysteryMan424's avatar - batman22
Pelham NY
United States
Member #60411
April 16, 2008
169 Posts
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Posted: November 25, 2008, 6:00 pm - IP Logged

Instead of bailouts why doesn't everyone start selling scratch-offs!

    duckman's avatar - ducklogodrake64x64
    Jacksonville Florida
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    Member #23018
    October 6, 2005
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    Posted: November 26, 2008, 1:42 pm - IP Logged

    The attorneys and court will have to sort that one out as it has all the makings of a classic trademark infringement lawsuit.

    One of the key tests in trademark cases is liklihood of confusion. So, are consumers likely to think that "BADA BLING" is related in some way to "BLING BLING"? Does "BADA BLING" dilute (or lessen) the value of "BLING BLING"? It looks like the New York Lottery and Scientific Games believe they changed "BLING BLING" just enough to not infringe on the existing trademark. The plaintiffs think "BADA BLING" is too close to "BLING BLING".

    Sometimes it comes down to what side has the most money and legal representation...

      Avatar
      NY
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      Member #23835
      October 16, 2005
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      Posted: November 27, 2008, 1:24 am - IP Logged

      What makes you think they changed "bling bling" to get "bada bling"? It seems pretty clear to me that they got "bada bling" by adding an L to "bada bing" which was a common expression long before the plaintiffs got their trademark. Bada bing essentially means something is easy, which ties in very well with lottery marketing. Even worse for the plaintiffs' case, "bling" and "bling bling" have both been in common use since well before they applied for the trademark. When you use a common word as a trademark its very difficult to prove that somebody else's use of the word infringes on your use. This is a bit like McDonald's claiming that Wendy's is infringing their trademark on "big mac" by calling their burger "big and juicy." There are currently 239 registered trademarks using the word "bling." That makes it unlikely that anyone will be confused by another use of the word, especially since the plaintiff's apparently don't actually have a product on the market.

        duckman's avatar - ducklogodrake64x64
        Jacksonville Florida
        United States
        Member #23018
        October 6, 2005
        918 Posts
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        Posted: November 27, 2008, 1:25 pm - IP Logged

        Whether or not they changed it intentionally doesn't matter. However they arrived at the new name, the key question will be is the public likely to confuse the two and does one term dilute the other. Common words can be protected within certain industries or classifications. Apple is one example. In the case of Bling Bling and Bada Bling, assuming both terms relate to the gaming/lottery industry, it will come down to likliness of confusion if it goes to trial.

          BaristaExpress's avatar - BaristaExpressMX zpsfb0d8b5d.png
          Magnolia, Delaware
          United States
          Member #18795
          July 20, 2005
          789 Posts
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          Posted: November 27, 2008, 9:47 pm - IP Logged

          What makes you think they changed "bling bling" to get "bada bling"? It seems pretty clear to me that they got "bada bling" by adding an L to "bada bing" which was a common expression long before the plaintiffs got their trademark. Bada bing essentially means something is easy, which ties in very well with lottery marketing. Even worse for the plaintiffs' case, "bling" and "bling bling" have both been in common use since well before they applied for the trademark. When you use a common word as a trademark its very difficult to prove that somebody else's use of the word infringes on your use. This is a bit like McDonald's claiming that Wendy's is infringing their trademark on "big mac" by calling their burger "big and juicy." There are currently 239 registered trademarks using the word "bling." That makes it unlikely that anyone will be confused by another use of the word, especially since the plaintiff's apparently don't actually have a product on the market.

          Hey KY, I think you need to re-learn what comprehension skills are and how they can help you present a good factual argument when the need arises! But so far you haven't a hope in the world in doing anything remotely close to that from what you have shown here in your writing above.

          Below is what I copied and pasted form the article it's self.

          Gameologist developed the lottery scratch-off game BLING BLINGTM (the Mark) and duly registered the Mark with the United States Patent and Trademark Office in 2003. Gameologist met with representatives of Scientific Games in 2003 and had correspondence with the Lottery in 2004. According to the Complaint filed today, both companies pretended that they were not interested in the Mark, claiming, at the time, that it was "too ethnic" and "did not meet lottery salability standards." Yet, the Complaint states that over the following three years, the Lottery and Scientific Games conspired to use Gameologist's Mark without entering into a licensing agreement with Gameologist — infringing on Gameologist's protected intellectual property.

          Now from what I see from the article, it's Gameologist who developed the lottery scratch-off game "Bling Bling" in 2003! Then they had met with Scientific Games reps. and also had correspondence with the NY Lottery in 2004! But both SG & the NY Lottery pretended they were not interested in the scratch-off game "Bling Bling" at the time! The reason as to why, they said it was "too ethic" and that it (the game) didn't meet lottery salebility standards! But over the next 3yrs. the NY Lottery and SG used Gameologist's protected property without paying for it!

          That's what I get from above and as to why the lawsuit is being brought against the NY Lottery and Scientific Games! But who knows maybe my comprehension skills aren't what they should be either? Yeah right and if my comprehension skills are as far off as KY's are, I have beach front property to sell you on the Las Vegas Strip............... 

          Keep dreaming the impossible dream, it just may come true! Thumbs Up

            Avatar
            NY
            United States
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            October 16, 2005
            3474 Posts
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            Posted: November 28, 2008, 1:57 am - IP Logged

            Maybe it's just because I don't know what comprehension skills are, but I think you've suggested that the lottery and SG have actually stolen the plaintiff's game. I can't really be sure, because you don't say what "protected" property you believe is being used, though the *press release* makes that point clearly:

            "the Lottery and Scientific Games conspired to use Gameologist's Mark"

            The lawsuit only claims "infringement" of their trademark. The trademark is "Bling Bling" and nothing more. Absent the lottery connection, they wouldn't have a prayer of winning the case. As a simple trademark, "Bada Bling" has onlya superficial resemblance to the plaintiff's trademark, based on theuse of the one word (used in at least 238 other trademarks, at least 4 of which are exactly the same as the plaintiff's).  OTOH, if the lottery came up with their name by changing the plaintiff's name it would almost certainly be a slam dunk (even if used for a completely different purpose), but I think a change to "bada bing" is a realistic origin. That would mean that the plaintiff's have to prove that the trademarks are  similar and likely to cause confusion. I think that's unlikely for two reasons.  The terms simply aren't that similar, and without a game the plaintiff has nothing for the lottery's name to be competing against, or be confused with.

            As for the possibility that the lottery or SG actually copied the game itself,  the plaintiff's remedy would be to sue for patent or trademark infringement. There is no mention of any attempt to do so, nor is there mention of any attempt to secure copyright or patent protection. Since this is a press release from the plaintiff's attorney, I would presume that it is an accurate description of their claims.

              BaristaExpress's avatar - BaristaExpressMX zpsfb0d8b5d.png
              Magnolia, Delaware
              United States
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              July 20, 2005
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              Posted: November 28, 2008, 4:10 pm - IP Logged

              Maybe it's just because I don't know what comprehension skills are, but I think you've suggested that the lottery and SG have actually stolen the plaintiff's game. I can't really be sure, because you don't say what "protected" property you believe is being used, though the *press release* makes that point clearly:

              "the Lottery and Scientific Games conspired to use Gameologist's Mark"

              The lawsuit only claims "infringement" of their trademark. The trademark is "Bling Bling" and nothing more. Absent the lottery connection, they wouldn't have a prayer of winning the case. As a simple trademark, "Bada Bling" has onlya superficial resemblance to the plaintiff's trademark, based on theuse of the one word (used in at least 238 other trademarks, at least 4 of which are exactly the same as the plaintiff's).  OTOH, if the lottery came up with their name by changing the plaintiff's name it would almost certainly be a slam dunk (even if used for a completely different purpose), but I think a change to "bada bing" is a realistic origin. That would mean that the plaintiff's have to prove that the trademarks are  similar and likely to cause confusion. I think that's unlikely for two reasons.  The terms simply aren't that similar, and without a game the plaintiff has nothing for the lottery's name to be competing against, or be confused with.

              As for the possibility that the lottery or SG actually copied the game itself,  the plaintiff's remedy would be to sue for patent or trademark infringement. There is no mention of any attempt to do so, nor is there mention of any attempt to secure copyright or patent protection. Since this is a press release from the plaintiff's attorney, I would presume that it is an accurate description of their claims.

              BLING BLINGTM (the Mark) and duly registered the Mark with the United States Patent and Trademark Office in 2003.

              Yet, the Complaint states that over the following three years, the Lottery and Scientific Games conspired to use Gameologist's (Mark) without entering into a licensing agreement with Gameologist — infringing on Gameologist's protected intellectual property.

              KY, your last paragraph is what it's all about! SG and the NY Lottery used Gameologist's protected intellectual property without paying for it! It doesn't matter that they changed the first word of the scratch-off game or not! What got them into trouble is the fact they made a scratch-off game in the likeness of the Gameologist's scratch-off game that they, SG and the NY Lottery both said were unmarketable because it was to ethnic ! Also take into account that Gameologist took their "Bling Bling" scratch-off game to SG and the NY Lottery before they came up with their Bada Bling scratch-off game! That in it's self sounds like they (SG & NY Lottery) copied Gameologist's scratch-off game in it's entirety and I hope a judge or a jury finds it that way also!

              Keep dreaming the impossible dream, it just may come true! Thumbs Up

                Avatar
                NY
                United States
                Member #23835
                October 16, 2005
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                Posted: December 1, 2008, 12:58 am - IP Logged

                "What got them into trouble is the fact they made a scratch-off game in the likeness of the Gameologist's scratch-off game"

                If that's what got them in trouble, why isn't the lawsuit for patent or copyright infringement?  Assuming the information their attorney chose to release is correct (and it's the only info alleged info we have), they have chosen only to file for trademark infringement. That, based on their own claim, makes this about the trademark.