Sega of America said last week it is reviewing possible responses to Nike's lawsuit against the videogame maker and its agency, Leagas Delaney, for copyright in fringement and unfair competition.
Nike, based in Beaverton, Ore., sued Sega and Leagas last week in federal court in Oregon, charging that a current ad for Sega's NBA 2K2 game "virtually re-enacts" a Nike TV spot called "Frozen Moment." The Nike ad, featuring a Bulls-Lakers NBA game with Michael Jordan, was created in 1996 by Wieden + Kennedy in Portland, Ore.
A Wieden representative declined to comment. Officials from Leagas in San Francisco did not return calls.
In both spots, the scene shifts from a fast-paced basketball game sequence to the slow-motion actions of onlookers. The complaint includes a scene-by-scene comparison of the ads, mentioning the runners on a treadmill in the Nike spot and a hamster on a treadmill for Sega and water spilling over the edge of a sink in the Nike spot and a drink spilling over the edge of a table in the Sega ad.
Doug Wood, co-executive partner at advertising law firm Hall Dickler Kent Goldstein & Wood in New York, which is not involved in the case, said Nike must prove that the expression of the idea, rather than just the idea itself, is similar.
Often, he said, courts use a "look and feel" test to determine infringement. The test, he said, is "if there's no way the second [ad] could have come about unless you were very aware of and tried to make it look like the first." He added that a parody defense is unlikely because the Sega work does not appear to "ridicule" the Nike spot.
Nike is asking Sega to pull the ad and pay unspecified damages or "a reasonable royalty on all sales of NBA 2K2 videogames."
A date for a hearing has not yet been set, said a Nike representative.