Smith International Legal Consultants, P.A.

What happens when a Brazilian company launches a set of video games in Brazil with strong similarities to games in the United States made by a U.S. company? You get a surprisingly complex litigation. Yesterday, online game company Zynga filed suit against alleged copycat company Vostu, headquartered in Brazil with offices in Buenos Aires and New York. The complaint focuses on the similarities between the competitors' games and alleges only one cause of action--copyright infringement. The news articles covering Zynga's complaint show a series of screenshots, and when combined with the relative brevity of the complaint, it appears to be a fairly straightforward case. But as many people involved in international commerce will tell you, looks can be deceiving.

For starters, Zynga sued a Brazilian company for copyright infringement but only alleged copyright protection in the U.S. How does this affect Vostu's activities in Brazil? Zynga clearly targeted Vostu's U.S. connections, describing its U.S.-based servers, location of its offices and marketing activities, and the travel habits of one of its founders, but much of Vostu's business activities are directed at Brazilian consumers. Zynga's screenshots further reveal this by comparing views of the Vostu's games with images of Portuguese words where Zynga uses English. Zynga may have a more difficult time really attacking Vostu's core business in Brazil through U.S. litigation, especially because U.S. judgments are typically unenforceable in Brazil.

Zynga faces other problems to make a strong move against Vostu in Brazil. Many U.S. courts have held Brazilian defendants can only be made to appear in U.S. court through a lengthy process called letters rogatory. This means the U.S. plaintiff has to send a copy of the complaint and summons (or demand to appear in court) through a diplomatic process than can take months, if not years. Without service through letters rogatory, none of Vostu's Brazilian companies can be made to appear in court in California, further weakening any judgment by the California court. This same process also applies for getting documents and testimony from the Brazilian companies, although courts seek to streamline the process.

Zynga is a sophisticated company, and it is highly unlikely it hired unqualified attorneys or did not take these preliminary issues into consideration. But it will be noteworthy to watch how Zynga pursues this action. Right now, it does not look like Zynga is going to sue Vostu in other countries, like Brazil, but such action may be necessary for Zynga to really strike at the heart of Vostu's operations. With the impressive list of funders backing Vostu, it's likely Vostu already had this in mind.

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