LOS ANGELES (CN) – Videogame maker Gameloft sued New York street performer The Naked Cowboy, seeking a declaration that its game “New York Nights” fairly uses a character that is “reminiscent” of the Cowboy. In a separate complaint in Newark, the Naked Cowboy claims a Clear Channel performer violated trademark by dressing in his “signature attire” – a cowboy hat, cowboy boots and underpants covered by an acoustic guitar – and calling himself the Naked Cowboy in dozens of videos posted on YouTube.
In the complaint in Los Angeles Superior Court, Gameloft says the street performer, whose real name is Robert Burck, threatened to sue over its game character. Burck performs in Times Square wearing his “signature attire.”
In “New York Nights,” players simulate life in New York City, with tasks such moving into a Greenwich Village apartment, getting a job and navigating the city’s neighborhoods.
In one scene, the game portrays a street performer in Times Square, who wears a cowboy hat and plays an acoustic guitar. That minor character, named Nick, appears only for a few seconds, Gameloft says. He appears among hot dog vendors, street artist, homeless people and tourists that serve to “heighten the realism” of the game, according to the complaint.
The company says there is nothing in the game to make players think that Burck created or endorses the game.
In June 2008, a federal judge dismissed Burck’s trademark infringement suit against Mars candy. Burck claimed that the company’s Times Square billboard, which featured a blue M&M wearing a cowboy hat, cowboy boots, underwear and a guitar, was based on The Naked Cowboy. Judge Denny Chin found that New York law protects the name or picture of a “living person,” rather than a fictional character. But Chin let Burck proceed on his false endorsement claim.
Gameloft is represented in Federal Court by Aaron Moss with Greenberg Glusker.
In Newark, Burck sued Clear Channel and Corey Bonalewicz, who works for the radio chain’s station 93.3 FLZ-FM in Tampa. He claims Clear Channel has been profiting from the violations by linking the YouTube videos to its Web site and providing a toll-free phone number to book appearances by the imitation Naked Cowboy.
The Naked Cowboy is represented by Scott Rothman of Conshohocken, Pa.