(CN) - Kevin Butler, the fictional PlayStation vice president that the electronics giant uses in commercials, has been moonlighting for Nintendo, Sony claims in Federal Court.
Neither Nintendo nor Jerry Lambert, the actor who plays Kevin Butler, are named as defendants in the complaint in the Northern District of California. Rather, Sony Computer Entertainment America (SCEA) has sued tire maker Bridgestone Americas and the advertising firm Wildcat Creek.
"'Kevin Butler is a fictional character created, owned and used by SCEA to promote SCEA's PlayStation video game systems and related products," according to the complaint. "For several years, an actor has portrayed 'Kevin Butler' pursuant to an exclusive contract with SCEA in which the actor, along with defendant Wildcat Creek Inc. agreed not to promote any competing video game products."
Sony says Lambert has appeared in more than 30 of its commercial spots and even attended the 2010 Electronic Entertainment Expo to promote the PlayStation brand. The character's Twitter account has about 130,000 followers, and a Kevin Butler Facebook page boasts of more than 11,000 "likes." The Butler character also hosts a YouTube channel called "The World o' KB" that has more than 50,000 subscribers and 11 million video views.
"Through these and other uses by SCEA, the 'Kevin Butler' character has acquired secondary meaning and come to serve as a source identifier for PlayStation products and services," the complaint states.
The company says Bridgestone and Wildcat breached their contract by using Lambert in a commercial for a "Game On!" tire promotion with Nintendo.
Wildcat's contract with Sony over Lambert went into effect on Aug. 7, 2009, and it extended the deal through Aug. 1, 2012, according to the complaint.
Sony says its contract, which provides injunctive relief in the event of a breach, gives it "sole and absolute" ownership of the Kevin Butler character "forever."
"Game On!" commercials allegedly appeared just three days after Lambert's contract with Sony expired. The commercial features Lambert as a Bridgestone employee and lead video game tester, giving Nintendo's "Mario Kart" game a trial run. Several cable channels, including ESPN, FX, the Discovery Channel, TNT and the Weather Channel, still air the spot, according to the complaint.
Sony claims Lambert "started working for Bridgestone in or around February 2012 and provided services to Bridgestone in connection with the competing Nintendo Wii product while he was still under contract with SCEA."
"Commercials like the Bridgestone promotion typically take weeks or months to script, shoot and produce," the complaint states. "On information and belief, given the production value of the commercial, Bridgestone and its agency arranged for the actor's participation and shot the sport during the agreement's term."
Sony says Bridgestone knew about its contract with Wildcat, including the existence of an "exclusivity" provision that prohibited the agency from providing services for competing products.
"Indeed, Bridgestone is trading in on the popularity of the Kevin Butler character in an effort to boost its own sale of products and entice consumers to participate in its Nintendo Wii product giveaway," the complaint states.
Further increasing consumer confusion, Bridgestone depicts Kevin Butler testing "Mario Kart" for Nintendo, while Sony is actively promoting the launch of a similarly themed video game, "LittleBigPlanet Karting," according to the complaint.
Sony says its latest promotion uses a cartoon version of the Kevin Butler character.
The complaint seeks an injunction for violation of the Lanham Act, unfair competition, common-law misappropriation, breach of contract and tortious interference.
Sony is represented by James Gilliland of Kilpatrick Townsend & Stockton.
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