TAC Files Counter Claim against RedOctane and Activision

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The Ant Commandos says it has filed a counter claim in the U.S. District Court for the Central District of California against Activision Publishing and RedOctane. The counter claim alleges that both Activision and RedOctane are violating Federal Antitrust legislation pertaining to the Guitar Hero game and controller bundle. In addition, the counter claim alleges that both Activision and RedOctane copied the identifiable trade dress of the controller from its developer and part owner of TAC, Topway Electrical Appliance. More specifically, the cross complaint alleges that this design was copied by RedOctane in developing the Guitar Hero SG controller and alleges that RedOctane developed the Guitar Hero game around Topway's identifiable trade dress. RedOctane allegedly copied the color, shape, and placement of the five fret buttons located on the controller.

In addition to the counter claim, TAC has filed for a preliminary injunction asking the federal court to enjoin Activision and RedOctane from further infringing on the trade dress originally developed by Topway. The injunction also asks the court to allow for fair competition in the market by enjoining the sale of the game/controller "bundle" so that consumers no longer have to purchase both the Guitar Hero game and the RedOctane controller but rather may purchase the game and have their choice on which controller to buy. To date, no injunction against TAC has been filed in this matter.

Topway originally designed and manufactured the Magical Guitar, a guitar controller for use with PlayStation in 1999. TAC alleges in its cross complaint, among other things, that RedOctane purchased several hundred of the Magical Guitars from Topway prior to producing the controllers themselves. Furthermore, the cross complaint alleges that top management at RedOctane visited the Topway factory on numerous occasions and specifically inquired about Topway's trade dress design. Hong Lip Yow, owner of The Ant Commandos, says TAC will continue to design, manufacture, and distribute The Guitar Mania Line despite the original claims filed by Activision Publishing and RedOctane.

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