Facebook and Federal Courts: Mafia Wars Jurisprudence
Mafia Wars significantly marginalizes the social utility of Facebook. I confirmed most of my Facebook friends against my better judgment, only to later hide their status updates, because I don’t care about the fake fortune they have amassed, the ” jobs” they have completed, or the multiple assassination attempts they have survived. I have gone to New York, Las Vegas, Paris, and London. I don’t need to pretend to go there to establish a simulated criminal empire that serves to camouflage a deep sense of loneliness. Moreover, because all Facebook users are subject to Mafia Wars updates, the backlash against Mafia Wars has also risen to new levels, robbing me of the usual cachet I enjoy when I express disdain directed towards society. Mafia Wars, how big a judgment would it take to end this?
Mafia Wars (the “Game”) is one of Zynga’s most popular games in which users can start a Mafia family with their friends and compete to become the most powerful family. Zynga has made use of the service mark MAFIA WARS in commerce since September 2008, and of the trademark MAFIA WARS since April 2009. Zynga currently owns Trademark Application Serial No. 77772110 for the mark MAFIA WARS in International Classes 009 and 041. As of December 2009, the Game had over 7 million daily users.
When users sign up with Zynga to play the Game, they receive a certain amount of “Virtual Currency” that can be used to compete with other players. Players can increase their total number of “Virtual Currency” either by their play or by purchase from Zynga. Players use this “Virtual Currency” to purchase various virtual, in-Game digital items (“Virtual Goods”).
Users can additionally earn Virtual Goods by either doing “jobs” or playing the Game. Zynga allows users to use the “Virtual Currency” or Virtual Goods while playing the Game, but retains sole and exclusive ownership of them and of the source code that allows them to be used in the Game. Zynga has not authorized any third party to sell the “Virtual Currency” or Virtual Goods required to play the Game. Users are informed in the Terms of Service that they are prohibited from selling “Virtual Currency” or Virtual Goods for real-world money or for exchanging “Virtual Currency” or Virtual Goods for anything of value outside of the Game.
In the present action, Zynga has alleged claims against Defendants for the unauthorized sale of Zynga Virtual Goods through the Internet domain names MAFIAWARSDIRECT.COM, MWBLACKMARKET.COM, and MWFEXPRESS.COM. Through these domain names, Defendants sell Virtual Goods that users, playing the Game through the Providers’ websites and/or applications, can use to compete with other players who obtained their Virtual Goods directly from Zynga. Defendants use Zynga’s MAFIA WARS mark and similar variations of it in advertising and for selling Virtual Goods. Plaintiff has never authorized Defendants to use the MAFIA WARS mark, sell Virtual Goods for use in the Game, or transfer Virtual Goods that Defendants have “sold” to players through the Infringing Websites.
Zynga Game Network Inc. v. Williams, No. CV-10:01022, 2010 WL 2077191, at *1 (N.D. Cal. May 20, 2010).
Sigh. No injunction sought; of course, Zynga can’t sue to enjoin itself. Interestingly enough, this is the second federal opinion involving Mafia Wars, the first being Zynga Game Network, Inc. v. McEachern, No. 09-1557, 2009 WL 1108668, at *1 (N.D. Cal. April 24, 2009). In that case, Zynga sought a temporary restraining order against a former employee who had developed Mafia Wars but left the company to create his own game, Mob Underworld.
We write about frivolous lawsuits nearly every day. Isn’t there one vexatious litigant out there who can save my Facebook account from this game? Come on!
In the mean time, we’ll consult Wigmore on Mafia Wars to explore our options.
