Eric has dysentery. Words of my childhood brought to you by hours and hours of mastering the game Oregon Trail on my school’s Apple 2E. Now the text-based, black and green plains have been replaced with the digital landscape of mobile phones and the Internet. The Learning Company, owners of the Oregon Trail franchise, want to keep the Trail to themselves and are suing Zynga, the makers of Farmville, Cityville, and Frontierville, over the “Oregon Trail” expansion pack to the Facebook-based game Frontierville.

Zynga released a trailer of the Frontierville expansion that highlighted the similarities between the two games. In the expansion, a Frontierville user can ford rivers, set up wagons, and hunt oxen on the Trail. The expansion is set to be released May 30^th, but The Learning Company is seeking an injunction to stop the release.

The complaint, found here, alleges trademark infringement for using “the Oregon Trail” mark to create confusion for the consumers, making consumers think that The Learning Company sanctioned this application. The trailer seems to support this idea. Within the first ten seconds, Zynga welcomes us to “set off on the Oregon Trail.” There are several factors involved in deciding whether a likelihood of confusion exists, but because of the similarity in markets and almost identical usage of the mark, Zynga will need to push the fact that they are using the mark descriptively to describe the features of the expansion (i.e. “it is very Oregon-Trail like”) but this defense may be difficult, especially with allegations of bad faith. Allegedly, TLC was in talks with Zynga about creating a Facebook version of the game last year. Talks fell apart and TLC ended up releasing the Oregon Trail with another company, attracting over one million users since February. Three months later, it seems as if Zynga is trying to use the Oregon Trail name to attract users to its Frontierville game.

As a side note, several news sources have been alluding to a copyright violation, which is not at issue with this case. However, this confusion is a perfect example of a concept called “the idea/expression dichotomy.” You can copyright the expression of an idea, like the graphics and text from the game itself, including character development and plot lines. However, preventing another from using the idea of “user takes a team out on a trail, overcoming obstacles, and reaching an end point” cannot be enforced under copyright law.

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