United States Court of Appeals for the Second Circuit

“ The visual and aural features of the audiovisual display are plainly original variations sufficient to render the display copyrightable even though the underlying written program has an independent existence and is itself eligible for copyright. Nor is copyright defeated because the audiovisual work and the computer program are both embodied in the same components of the game. The same thing occurs when an audio tape embodies both a musical composition and a sound recording. Moreover, the argument overlooks the sequence of the creative process. ”

“ Video games like "Scramble" can roughly be described as computers programmed to create on a television screen cartoons in which some of the action is controlled by the player. In Stern's "Scramble," for example, the video screen displays a spaceship moving horizontally through six different scenes in which obstacles are encountered. With each scene the player faces increasing difficulty in traversing the course and scoring points. ”

“ It is more likely that defendants sought to appropriate the trademark with the expectation that they would later imitate the audiovisual display." Moreover, the equities abundantly justified issuance of an injunction against Omni's use of the mark. Stern has a substantial investment in the mark, having achieved success in the marketplace with its sales of a large number of units bearing the mark. By contrast, Omni has placed the mark on the headboard of five units of games that are not "Scramble" and has used the mark for a "Scramble" game that is a pirated "knock-off" of Stern's game. ”