Judge champions City of Heroes' cause in lawsuit

Judge rules against several of Marvel's key claims in its trademark infringement battle with NCSoft and Cryptic Studios

Let's trip back to November 2004 briefly, when news broke that comic book giant Marvel had taken out a lawsuit against NCSoft and Cryptic Studios. Marvel claimed that MMORPG City of Heroes, of which NCSoft is publisher and Cryptic Studios developer, infringed copyright by allowing players to create superheroes bearing likeness to Marvel characters.

Marvel also alleged at the time that by allowing these characters to exist within the City of Heroes gameworld, NCSoft and Cryptic have damaged Marvel's prospects for licensing its own characters in videogames.

A U.S. district court judge in Los Angeles has today dismissed several of the key claims made by Marvel. This decision follows a March 9 order from U.S. District Court Judge R. Gary Klausner who agreed with NCsoft that some of Marvel's allegations and exhibits should be stricken as "false and sham" because certain allegedly infringing works depicted in Marvel's pleadings were created not by users - but by Marvel itself.

Additionally, the judge dismissed more than half of Marvel's claims against NCsoft and Cryptic Studios, "including Marvel's claims that the defendants directly infringed Marvel's registered trademarks and are liable for purported infringement of Marvel's trademarks by City of Heroes' users," says Mr. Press Release.

It continues: "In addition, he dismissed Marvel's claim for a judicial declaration that defendants are not an online service provider under the Digital Millennium Copyright Act. The judge dismissed all of these claims without leave to amend, meaning that Marvel cannot refile these claims."

NCsoft and Cryptic Studios are naturally pleased with the result despite the judge allowing certain claims to survive. Both publisher and developer "are confident that both the law and the facts will support their case."

Apparently "the defendants have 10 days in which to answer and dispute Marvel's allegations and to assert legal defenses to the remaining claims as well as to assert any counterclaims."

We'll keep you posted.