## Facts

- Incredible Technologies, Inc. (IT) created and sold “Golden Tee,” a coin-operated video golf arcade game sold in a cabinet with a screen, speakers, and a control panel featuring a central trackball and buttons.
- Virtual Technologies, Inc., doing business as Global VR, developed a competing cabinet-style golf game, “PGA Tour Golf,” and designed its controls to be familiar to Golden Tee players.
- IT owned copyrights covering (1) Golden Tee’s audiovisual display imagery and (2) an instructional guide displayed on the control panel.
- IT also claimed the Golden Tee control panel’s layout and appearance constituted protectable trade dress under Lanham Act § 43(a).
- IT sued in federal district court for copyright and trade dress infringement and sought a preliminary injunction to stop Global VR from marketing PGA Tour Golf during the case.
- The district court denied preliminary injunctive relief, and IT appealed.

## Issues

1. Whether IT showed a likelihood of success that PGA Tour Golf’s audiovisual elements were substantially similar to protectable expression in Golden Tee.
2. Whether IT showed a likelihood of success that PGA Tour Golf copied protectable expression from Golden Tee’s control-panel instructional guide.
3. Whether IT showed a likelihood of success that Golden Tee’s control-panel configuration was nonfunctional, distinctive trade dress and that PGA Tour Golf created a likelihood of consumer confusion.

## Decision

- The Seventh Circuit affirmed the denial of a preliminary injunction.
- IT failed to show a likelihood of success on the merits of either copyright claim.
- IT failed to show a likelihood of success on the trade dress claim because the asserted features were largely functional and, in any event, the overall appearance and prominent branding reduced any likelihood of confusion.
- Because likely success was not shown, the district court did not abuse its discretion in denying preliminary relief.

## Legal Principles

- Copyright protects original expression, not the underlying idea; in comparing works, courts filter out unprotectable ideas and standard or function-driven elements before assessing substantial similarity of protected expression.
- Functional instructions and constrained design choices (e.g., explaining how controls operate) may leave little protectable expression; similarity driven by function does not establish infringement.
- Trade dress under Lanham Act § 43(a) requires (1) nonfunctionality, (2) distinctiveness (inherent or acquired), and (3) likelihood of confusion.
- Features dictated by ergonomics or usability are functional and not protectable as trade dress.
- Prominent, source-identifying branding and differences in overall appearance can strongly weigh against a likelihood of consumer confusion, especially where purchasers are relatively sophisticated.
- A failure to show likelihood of success on the merits generally defeats a request for a preliminary injunction.

## Conclusion

The court upheld denial of preliminary injunctive relief because IT did not show likely infringement of protected audiovisual or instructional-guide expression and did not establish protectable, nonfunctional trade dress or likely confusion given functional constraints and distinct branding and appearance.


Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007 (7th Cir. 2005)