Tetris Holding, LLC v. Xio Interactive, Inc.Tetris Holding, LLC v. Xio Interactive, Inc.
OPINION
Presently before the Court are cross-motions for summary judgment. Plaintiffs Tetris Holding, LLC and the Tetris Company, LLC (collectively “Tetris Holding” or “Plaintiffs”) claim that Defendant Xio Interactive, Inc. (“Xio” or “Defendant”) has infringed the copyright and trade-dress of Plaintiffs’ video game Tetris. Xio does not raise any issue of fact in response, but makes a purely legal argument that because it meticulously copied only non-protected elements, in particular the rules and functionality of the game, and not its expressive elements, that judgment should be entered in its favor. The motions stem from Tetris Holding’s First Amended Complaint that alleges (1) Xio infringed Tetris Holding’s copyright under
For the reasons that follow, Plaintiffs’ motion is granted and Defendant’s motion is denied.
I. BACKGROUND
The Court only recounts the facts necessary to resolve the parties’ motions. The following facts are undisputed by the parties. The game of Tetris gained fame in the United States during the late 1980s and early 1990s as an electronic video game initially played on Nintendo’s portable platform, the Gameboy, and on its console systems. Since that time, Tetris Holding has developed many versions for modern platforms.
Tetris is a facially simple puzzle game in which the player is tasked with creating complete horizontal lines along the bottom of the playing field by fitting several types of geometric block pieces (called tetrominos) together. The game becomes more complex and more difficult as you progress and are left with fewer options to arrange the pieces and less area of the playing field is available. Originally developed in Russia during the mid-1980s by Russian computer programmer Alexy Pajitnov, Tetris was exported to the United States and has since been adapted for the myriad electronic video game platforms available to consumers, including Apple Ine.’s iPhone. Pajitnov formed Tetris Holding, LLC, along with game designer, Henk Rogers. Tetris Holding, LLC owns the copyrights to the visual expression of the numerous
Tetris Holding’s success has also bred many unauthorized attempts at imitation. In response, Tetris has vigorously made a concerted effort to protect,its intellectual property by pursuing such infringers through the legal process and removing hundreds of imitation games from the market. Tetris Holding alleges that Xio is one such company that has infringed its intellectual property, namely its copyrights and its trade dress, trading off the creative aspects of its work without authority.
Xio was formed by Desiree Golden, a recent college graduate, who decided to create a multiplayer puzzle game for the iPhone called “Mino ” and admittedly used Tetris as inspiration.
Xio released Mino version 1.0 in May 2009, Mino version 1.1 in July 2009, and Mino Lite shortly thereafter.
Tetris Holding argues that Mino infringed the following copyrightable elements:
1. Seven Tetrimino playing pieces made up of four equally-sized square joined at their sides;
2. The visual delineation of individual blocks that comprise each Tetrimino piece and the display of their borders;
3. The bright, distinct colors used for each of the Tetrimino pieces;
4. A tall, rectangular playfield (or matrix), 10 blocks wide and 20 blocks tall;
5. The appearance of Tetriminos moving from the top of the playfield to its bottom;
6. The way the Tetrimino pieces appear to move and rotate in the play-field;
7. The small display near the playfield that shows the next playing piece to appear in the playfield;
8. The particular starting orientation of the Tetriminos, both at the top of the screen and as shown in the “next piece” display;
9. The display of a “shadow” piece beneath the Tetriminos as they fall;
10. The color change when the Tetriminos enter lock-down mode;
11. When a horizontal line fills across the playfield with blocks, the line disappears, and the remaining pieces appear to consolidate downward;
12. The appearance of individual blocks automatically filling in the playfield from the bottom to the top when the game is over;
13. The display of “garbage lines” with at least one missing block in random order; and
14. The screen layout in multiplayer versions with the player’s matrix appearing most prominently on the screen and the opponents’ matrixes appearing smaller than the player’s matrix and to the side of the player’s matrix.
PI. Motion, at 17.
II. LEGAL STANDARD
“Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law.” Pearson v. Component Tech. Corp.,
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323,
III. DISCUSSION
1. Copyright Infringement
“To establish a claim of copyright infringement, a plaintiff must establish: (1) ownership of a valid copyright; and (2) unauthorized copying of original elements of the plaintiffs work.” Dun & Bradstreet Software Services, Inc. v. Grace Consulting,
The parties agree that there are no genuine issues of fact in connection with their motions on either the copyright or federal trade dress claim. The question before the Court then is not whether summary judgment is appropriate, but rather, which party is entitled to summary judgment. There are no issues of material facts, in part, because Xio concedes much. Xio acknowledges that Tetris Holding owns the registered copyrights to the various iterations of Tetris and further admits that Xio copied Tetris, purposefully and deliberately, in designing Mino. Xio does not dispute that it downloaded Tetris Holding’s iPhone application and used it to develop its own iPhone Tetris-like application for profit. What Xio does not concede is that it copied any protected elements. Instead, it argues the elements it copied were not original expression, because they were part of the game itself — the rules, function, and expression essential to the game play— which is not protected. Before releasing its product, Xio researched copyright law, both through its own independent studying and based on advice of counsel,
There is no question that Mino and Tetris look alike. But the only similarities between the games are elements not protected by copyright. This is no coincidence. Before developing its games, Xio analyzed the intellectual property laws to determine what parts of Tetris they could use and what parts they couldn’t. Xio discovered that no one had a patent to the rules and other functional elements of Tetris. Xio carefully, intentionally, and purposefully crafted its game to exclude all protected, expressive elements.
Def. Motion, at 2. Implied, but not stated, in this admission is that Xio’s careful, intentional, and purposeful attempt to exclude all protected elements was based on its opinion of what it believed was protected; the validity of that opinion, or lack thereof, underlies this litigation.
To resolve the claim of copyright infringement, I must first determine which elements of Plaintiffs’ Tetris game are protected and which are not. I begin with the relevant language from
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Together
The doctrine is simple to state— copyright will not protect an idea, only its expression- — but difficult to apply, especially in the context of computer programs. As Judge Stahl of the First Circuit aptly wrote: “Applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.” Lotus Dev. Corp. v. Borland Int’l,
The Third Circuit was perhaps the first to weigh in on this issue in Whelan, although this decision has been criticized outside this Circuit.
Shortly thereafter, the Second Circuit developed the abstraction-filtration-comparison that purported to depart from Whelan. Altai
I do not find, however, that these approaches require widely differing analyses, at least based on the facts before me today; both rest on similar premises and applications. In Whelan, the court held “the purpose or function of a utilitarian work would be the work’s idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea. Where there are various means of achieving the desired purpose, then the particular means chosen is not necessary to the purpose; hence, there is expression, not idea.” Id. at 1236 (emphasis in original). The computer program at
In Altai, the Second Circuit suggested district courts undertake much the same analysis, albeit in three distinct steps. First, a court should “abstract” the program at issue, then filter out the unprotected material, and finally compare whatever remains (the protected expression) to the copied work. The last two steps are mostly identical to what the Third Circuit did in Whelan. It is the first step of the analysis, the abstraction, where differences purportedly lie. To abstract a computer program, the Second Circuit suggested that: “a court would first break down the allegedly infringed program into its constituent structural parts.” Altai,
Indeed, criticism of Whelan seems aimed more at its application than the general principles underlying the holding inasmuch as the court found only one unprotectible idea at issue. Nimmer, § 13.03[F][1] (“The crucial flaw in this reasoning it that it assumes that only one ‘idea,’ in copyright law terms, underlies any computer program, and that once a separable idea can be identified, everything else must be expression.”); Gates Rubber Co.,
ii. Doctrines of Merger and Scenes a Faire
In determining what elements are not protected, two related doctrines must be considered: merger and scenes á faire. Merger exists when an idea and its particular expression become inseparable. Kay Berry, Inc. v. Taylor Gifts, Inc.,
The second, related doctrine, known as “scenes á faire” (literally meaning a scene that must be done), applies to expression that is so associated with a particular genre, motif, or idea that one is compelled to use such expression. Jackson v. Booker,
in. Copyright Law As Applied to Games
With these principles and doctrines in mind, I now turn to the law as it has developed with regard to games and videogames in order to parse out the unprotected elements of Tetris from Plaintiffs’
Rather than following this analysis, Defendant’s primary argument takes a somewhat different path. Xio repeatedly emphasizes that Tetris Holding cannot protect by copyright what is only protectible by patent and therefore not only are the ideas of Tetris (or the rules of the game) not protectible, but neither are the “functional aspects” of the game or expressive elements related to the game’s function or play. Def. Motion, at 6. As part of this argument, Xio conflates the doctrines of merger and scenes á faire to say that Tetris Holding cannot protect expression inseparable from either game rules or game function.
Xio’s brief devotes many pages to explain how patents protect particular aspects of intellectual property while copyright protects other, distinct aspects, but I find that Defendant extracts much from this distinction — too much. Xio is correct that one cannot protect some functional aspect of a work by copyright as one would with a patent. But this principle does not mean, and cannot mean, that any and all
The cases Xio cites in support of its argument do not stand for expanding the law so that any expression related to functionality is a fortiori outside the ambit of copyright law. Rather, expression is not protected only when it is integral or inseparable from the idea or the function under the doctrines of merger or scenes á faire. Defendant relies on the seminal case, Baker v. Selden, as the starting point for its analysis. There the Supreme Court held that plaintiff could not copyright certain forms used in his new system of bookkeeping ostensibly as a means to protect the idea underlying that system. Baker v. Selden,
The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.
Id. (emphasis added). That the charts (i.e. the expression of the idea) were “necessary incidents” is key in applying this case here; the art was unusable without that expression. The Court, holding plaintiffs expression unprotectible, in essence applied the merger doctrine to prevent the plaintiff from precluding the use of his idea, which he had already donated to the public domain. But the Court did not hold that any expression, even if related to a use or method of operation, was beyond the boundary of copyright. Indeed, it said the opposite: “But as embodied and taught in a literary composition or book, their essence consists only in their statement. This alone is what is secured by the copyright. The use by another of the same methods of statement, whether in words or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of the copyright.” Id. at 104.
Many of the other cases cited by Xio reach the same result based on the same reasoning. In Taylor Instrument, the court found that plaintiffs chart was an integral part of its recording thermometer and therefore an object of use not entitled to copyright protection. Taylor Instrument Cos. v. Fawley-Brost Co.,
The case that appears to come closest to Defendant’s point is Lotus Development Corp. v. Borland International, Inc.,
Xio also relies on a number of opinions discussing video games. In no case, however, did a court find that expression was unprotectible merely because it was relat
The Midway decision also involved the copyright of the video game Galaxian. There the defendant argued that Galaxian had no copyright in its game because the game Space Invaders was a pre-existing work. The court disagreed because it was only the basic structure or concept of the game that was copied: “Nonetheless, the most cursory perusal of the two works indicates that the only similarity between them is in the idea of the underlying games, i.e., outer space games wherein a defendant base or rocket ship, controlled by the player, attempts to fend off attacking hordes of aliens ... When the expressions of the Galaxian and Space Invaders works are compared, it is clear there is no similarity beyond that of idea.” Id. at 144-45. Again the court included under the umbrella of expression the look and feel of the characters and how they move and act. Midway took the unprotectible idea and found a new, novel way to express it.
In Data East USA, Inc. v. Epyx, Inc.,
Finally, in another Seventh Circuit decision, the court analyzed arcade golf games and found no infringement because the expressive elements were not protected under the scenes á faire doctrine:
In contrast, we see no error of law in Judge Kennelly’s finding that the Global VR video display is subject to the scenes á faire doctrine. Like karate, golf is not a game subject to totally “fanciful presentation.” In presenting a realistic video golf game, one would, by definition, need golf courses, clubs, a selectionmenu, a golfer, a wind meter, etc. Sand traps and water hazards are a fact of life for golfers, real and virtual. The menu screens are standard to the video arcade game format, as are prompts showing the distance remaining to the hole. As such, the video display is afforded protection only from virtually identical copying.
Incredible Techs., Inc. v. Virtual Techs., Inc.,
Nonetheless, from the foregoing cases, Xio draws the following conclusion: “where a feature of a videogame is dictated by functional considerations, regardless of whether there may be a number of different ways to implement that feature’s functionality, copyright does not protect that feature.” Def. Motion, at 22. This is incorrect as a matter of law and fails as a matter of logic. If an expressive feature is dictated by functional considerations then there cannot be a number of ways to implement it. Rather, one’s original expression is protected by copyright — even if that expression concerns an idea, rule, function, or something similar — unless it is so inseparable from the underlying idea that there are no or very few other ways of expressing it. “If other methods of expressing that idea are not foreclosed as a practical matter, then there is no merger.” Educational Testing Services,
iv. Substantial Similarity of Tetris and Mino
With this framework, I can compare the audio-visual aspects of the two games at issue: Tetris and Mino. To separate ideas from expression, the parties offer competing definitions of game rules, but I do not need to articulate a rigid, specific definition. While the unenviable task of dissecting a game’s ideas from its expression is difficult, I am guided by case law and common sense, and find that the ideas underlying Tetris can be delineated by understanding the game at an abstract level and the concepts that drive the game. See, e.g., Atari,
The parties argue over a number of particular features of both games, which I will address in turn. Before that, however, I note that it is appropriate to compare the two works “as they would appear to a layman” concentrating “upon the gross features rather than an examination of minutiae.” Universal Athletic Sales Co. v. Salkeld,
Xio has provided the court with links to uploaded videos at www.youtube.com showing the game play of both Tetris and Mino; Tetris Holding has provided similar video evidence. The Court has reviewed these videos as well as screen shots of the individual game screens, the declarations and attached exhibits, and the parties’ respective statements of fact. Screenshots of both games are shown here side by side:
The first is Tetris and the second is Mino. Without being told which is which, a common user could not decipher between the two games. Any differences between the two are slight and insignificant. If one has to squint to find distinctions only at a granular level, then the works are likely to be substantially similar. Reviewing the videos of the game play bolsters this conclusion as it is apparent that the overall look and feel of the two games is identical. There is such similarity between the visual expression of Tetris and Mino that it is akin to literal copying.
In particular, the style of the pieces is nearly indistinguishable, both in their look and in the manner they move, rotate, fall, and behave. Similar bright colors are used in each program, the pieces are composed of individually delineated bricks, each brick is given an interior border to suggest texture, and shading and gradation of color are used in substantially similar ways to suggest light is being cast onto the pieces. Showing the pieces in more
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PL Stmt, of Undisputed Fact, ¶¶ 51, 163.
Without even considering the other allegedly infringing aspects, courts have found copyright infringement based on the fact that video game characters or pieces are nearly identical. In both Atari and Midway, the Seventh Circuit found infringement entirely on the substantial similarities between the style, color, and movement of the game characters. Atari,
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U.S. Patent No. 5,265,888, Figures 10(c), 10(f). Instead of using bricks to form complete rows, the user aligns pills and viruses of different colors to form patterns and eliminate the viruses as part of the pattern based on the color of the objects. Considering the exponential increase in computer processing and graphical capabilities since that unique variation on Tetris’s rules, the Court cannot accept that Xio was unable to find any other method of expressing the Tetris rules other than a wholesale copy of its expression.
v. Other Discrete Copyrightable Elements of Tetris
I turn now to the other elements of Tetris that Xio allegedly infringed. In addition to the design and movement of the playing pieces as discussed above (including the use of bright colors, the indi
Xio defends copying the exact size of the playing field — 20 units high by 10 units wide — by saying that a rule of the game is to have a board that it higher than it is wide. Def. Motion, at 34. But having a board higher than it is wide is not the issue; Xio copied a field that was the exact same dimensions as Tetris. Even assuming it is a rule to have a field higher than it is wide, which the Court does not necessarily find, it is not a rule to have the playfield be exactly 20 units by 10 units. Xio was free to program a puzzle game with the playing field designed “in an almost unlimited number of ways” as admitted by Xio’s expert. PL Stmt. Of Undisputed Fact, ¶ 53. Xio was not limited to those precise dimensions and was free to take the general idea of having a long game board and express it in its own unique way. For example, it could have had a field three times as high as it is wide or 15 units high by 8 units wide, without copying the exact game dimensions and infringing the look and feel of Tetris’s expression. Thus, I find this to be protective expression that Xio infringed.
Similarly, Mino also displays “garbage” lines, “ghost” pieces, and a preview of the next piece to fall in order to enhance game play as does Tetris. A garbage line is when the computer randomly generates a line of blocks and places them on the game board and a ghost piece is an outline of the current piece that appears in the location where the piece would fit unless it is moved or rotated. A preview piece shows the user the next piece that will fall after she fits the one currently in play. Xio argues that because garbage lines add a limitation on a player and ghost lines and preview pieces aid the player, they are rules of the game. I am not persuaded that these features constitute either the ideas or rules of Tetris or are necessitated by game play. Moreover, even if these were rules, it is Xio’s copying the same look and feel of these features that lead me to find it has infringed Tetris Holding’s copyright. Xio was free to design other ways to alter game play, making it more or less difficult, using its own original expression to express these features, which it has chosen not to do.
Lastly, in both Tetris and Mino the color of the piece changes from a bright active color into a darker color when the piece becomes locked with the accumulated pieces to show it is inactive and when a player loses, the screen fills up with blocks to show that the game is over.
Tetris Holding also cites four decisions by the U.S. Customs Service that held the visual expression of Tetris to be copyrightable expression and attaches the opinions to its motion. Schmitt Deck, Ex. 68. In each, the Customs Service found Tetris Holding had broad protection in the graphical elements of its game:
In the present case the copyrightable features of the TETRIS game ... includes downward, lateral, and rotating movements of the differently oriented four-brick playing pieces, and the shape and appearance of the four-brick playing pieces, both in the “dots” that appear within the individual bricks themselves, as well as in the configuration of the four-brick combinations comprising the playing pieces. Additional copyrighted features include: the scoring features, the feature displaying the next four-brick playing piece that will fall down the playing field matrix, the disappearance of any completed horizontal row, the subsequent consolidation of the playing pieces remaining on the playing field as a result of the downward shift into the space vacated by the disappearing row, the resulting score, the background music, the specific sounds ... the makeup of the playing field itself, i.e., the vertical matrix, higher than it is wide, with a base of ten individual “bricks” per horizontal row, and generally twenty individual “bricks” per vertical line.
Id. Xio argues these opinions should have no weight on my decision. It goes without saying I am not bound by such administrative decisions nor am I necessarily persuaded by them as I do not find that all the content described by the Customs Service is part of the protectible expression of Tetris. Nevertheless, I reference these decisions only to show that other tribunals have independently reached the same conclusion as to those elements that I do find were infringed expression.
As to the remaining features implicated by Tetris Holding, I cannot find as a matter of law that these features are wholly expressive. Nor do I need to reach these issues because it is clear that the two games are substantially similar even without considering these remaining elements.
Xio raises a fair use defense, but only to the extent that the Court finds “the infringing elements are a very small portion
Xio’s defenses fail as a matter of law and there are no issues of fact regarding Tetris Holding’s claim of copyright infringement. Accordingly, summary judgment is granted on Count One in favor of Plaintiffs.
2. Trade Dress
Tetris Holding also moves for summary judgment on Count Two arguing that Xio willfully infringed its trade dress under federal law; Xio moves that Tetris Holding’s trade dress is functional and therefore it is entitled to summary judgment. To establish trade dress infringement, Tetris Holding must prove that (1) the trade dress is distinctive in that it has acquired secondary meaning; (2) the trade dress is not functional, and (3) there is a likelihood that consumers will confuse Xio’s Mino product for that of Plaintiffs’ Tetris product. See Knorr-Nahrmittel A.G. v. Reese Finer Foods, Inc.,
In addition to raising an affirmative defense, Xio only disputes the second element and argues that Tetris Holding’s trade dress is functional.
The Supreme Court has explained that a feature is functional if: “it is essential to the use or purpose of the device or when it affects the cost or quality of the device” or the right to use it exclusively “would put competitors at a significant non-reputation-related disadvantage,” meaning it is “essential to effective competition in a particular market.” TrafFix Devices v. Mktg. Displays,
Instead, Xio points to language in TrafFix where the Supreme Court said: “There is no need, furthermore, to engage as did the Court of Appeals, in speculation about other design possibilities.... ” TrafFix,
Xio also argues that Tetris Holding’s trade dress claim is preempted as per the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox Film Corp.,
In light of the above and there being no issues of fact raised by either party, summary judgment is granted on Count Two, Plaintiffs’ claim of trade dress infringement, in favor of Plaintiffs.
IV. CONCLUSION
Plaintiffs’ motion for summary judgment on Counts One and Two is granted. Defendant’s motion for summary judgment is denied. An order will be entered consistent with this Opinion.
Notes
. Plaintiffs have subsequently withdrawn their unjust enrichment claim. PL Motion, at 45, n. 22.
. The name Mino comes from the name of the Tetris playing piece: tetromino.
. The differences between these versions are not relevant to resolving the parties’ motions.
. Def. Motion, at 6-7. A related issue is that Xio was compelled by the Court to produce certain attorney-client communications in this case because Xio had first voluntarily produced some privileged documents in support of its case, thus invoking the sword and shield dichotomy. The parties argue extensively about what these compelled documents ultimately say and how they should be weighed in my decision. However, I find that the purely legal issues involved here can be resolved without resorting to the allegedly protected documents.
. Judge Hand famously described the difficulty of a court’s task in deciphering an idea from its expression: "Obviously, no principle can be stated as to when an imitator has gone
. Both Whelan and Altai, discussed infra, involved circumstances where the courts were considering the structure of the program rather than its graphical interface or visual displays. Nevertheless, these cases are instructive for how one analyzes copyright issues involving computer programs generally, especially in this instance when Xio argues so strenuously that Plaintiffs’ expression is unprotected because it is functional.
. Xio argues that some independent principle protects game rules rather than it being the natural extension of the idea-expression dichotomy applied to games. I find no case law or support for such a premise.
. Xio says that Lotus was affirmed by the Supreme Court. This is technically true, but deserves a brief comment of explanation. The Supreme Court granted certiorari on the First Circuit’s opinion, but one week after oral argument, Justice Stevens recused himself and the Court announced that it was equally divided and left the First Circuit's decision undisturbed without comment or opinion.
. The court in Incredible Techs, was deciding whether a preliminary injunction was appropriate and in particular whether Incredible Technology had a likelihood of success on the merits. Such success was unlikely because the court found that there were sufficient differences in the presentations of the two games.
. Interestingly, the case that Defendant relies on so heavily, Lotus v. Borland, suggests that I need not engage in any abstraction in instances of literal copying: “Nonetheless, the implication is that for literal copying, 'it is not necessary to determine the level of abstraction at which similarity ceases to consist of an "expression of ideas,” because literal similarity by definition is always a similarity as to the expression of ideas.’ ” Lotus,
. In the event that the color of these' figures is not shown due to the publication process, the Court notes that they are virtually identical.
. As noted earlier, Defendant also discusses at length how some of the individuals associ
. When the copied elements are “nearly identical” to the original' — such as is the case here — then merger will not apply even if the ideas and the expression were found to be inseparable, which the Court does not find here. See Mortg. Mkt. Guide,
. From my review of the game play videos, it does not appear that the colors of the pieces change (at least significantly) in either Tetris or Mino. But Xio does not argue this point or refute this feature as an undisputed fact. Second, Xio argues that its current version of Mino removed the feature of the screen by filling with blocks when the game is over.
.
. Plaintiffs’ description of its trade dress includes the qualifier “including, but not limited to.” PL Mot., at 27. Plaintiffs have had sufficient time to determine exactly the contours of the alleged trade dress violation and for purposes of this motion, this is the trade dress that I will consider.
. I note that Xio's apparent concession that there is a likelihood customers will confuse the two products also supports my finding of substantial similarity between Tetris’s copyrightable content and Mino.