2d 25 (1961).Īt the outset it must be stated that it does not appear that defendant has used plaintiffs' mark. To establish infringement under Section 32 of the Lanham Act, plaintiffs must basically show that the use of its mark by defendant creates a likelihood of confusion and also that a finding of infringement is favored by a balance of equities. The mere fact plaintiffs have a registered service mark on "Simon Says" does not give them the right to absolute protection of the mark. § 1051 et seq., Section 368 of the General Business Law of New York and common law. In the meantime, on August 26, 1980, this action for damages, injunctive relief and an accounting was commenced under the Lanham Act, 15 U.S.C. The plaintiffs herein have opposed this application which is still pending. *988 In November, 1977, defendant applied for a trademark of the name "Simon" for its game. Thereafter, his agent evidently sought further engagements in the promotional efforts of the defendant for the game, but the defendant declined the offer. Prior to Goldstein's performance he was advised of the entire marketing concept of the defendant's game, and, in fact, was given a model of the game. As part of this affair, the plaintiff Goldstein was hired to perform his "Simon Says" routine. After several sales calls and an introduction at a trade fair, "Simon" was officially presented to the public on May 18, 1978, when Milton Bradley staged a large publicity affair at Studio 54 in New York. The defendant's game was devised by a toy inventor in Chicago and later developed and marketed by the defendant beginning sometime in the fall of 1977. Under the uncontroverted facts on the record before me, it is clear that the defendant has not infringed plaintiffs' mark nor has it engaged in any unfair competition. I have grave doubts that the appropriation of the name of a traditional children's game by the plaintiffs amounts to a valid trademark or service mark but I need not reach that question here. The plaintiffs now claim that the defendant has interfered with the service mark by calling their product "Simon" and using the words "Simon says repeat my flashing Lights and Sounds" on the packaging for "Simon." " The corporate defendant has registered as a service mark a script mark "Simon Says" with the United States Patent Office (No. to "promote and exploit the presentation of the entertainment act or production known as `Simon Says' as originated by Louis Goldstein of Grossingers Hotel, Grossinger, New York. In that connection, he formed the corporate plaintiff Simon Says Enterprises, Inc. He has taken the traditional children's game "Simon Says" and turned it into a successful night club act. Plaintiff Louis Goldstein is an entertainer at the Grossingers Hotel in the Catskills. If the player is clever enough to repeat the sequence, the game sounds a series of notes to indicate that the player is a winner. Should the player fail to repeat these signals, the game emits a harsh electronic sound. The object of this game is for one or more players to press the buttons which repeat the sequence of lights and sounds electronically produced by the game. Milton Bradley markets an electronic game with the name "Simon." The game is approximately the size of a ten inch disc with four large colored buttons that flash in various pre-programmed sequences. Accordingly, those facts not denied will be deemed to have been admitted. The affidavit submitted on behalf of the plaintiffs do not deny many of the facts asserted by the defendant in connection with this motion. The only reply from the plaintiff is an attorney's affidavit and a letter accompanied by two exhibits. In this trademark infringement and unfair competition action, defendant Milton Bradley Company has moved for summary judgment. Skadden, Arps, Slate, Meagher & Flom, New York City, Rodney O.
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