Back in April, we posted another update about Disney and Lucasfilms taking legal action against Ren Ventures Limited and Sabacc Creative Industries over their use of the SABACC trademark and related copyrights. While Solo didn’t seem to do as well in theaters as everyone hoped, this case is still going strong.

To sum up where we left off in this case, many defendants had been added to the docket, including Denny’s, everyone’s favorite 24/7 diner, EP & Co., an advertising agency, and Collider, an art and film studio. The countersuit filed by Ren Ventures and Sabacc Creative on April 23, 2018 illustrated the history of how Ren Ventures and Sabacc Creative came to register and license the SABACC mark in 2016 for their playing-card video game. Their argument, essentially, was that Disney and Lucasfilms were the actual infringers on the SABACC mark.

Lucasfilms and Disney moved for summary judgment on their claim of copyright infringement against Ren Ventures and Sabacc Creative. For those of you who are fortunate enough to be unfamiliar with the concept of summary judgment, it means that Disney and Lucasfilms were so confident about the success of their argument that they felt a full trial was unnecessary. Since the facts of the case so obviously led to infringement, it aimed to convince the court that it should make a decision on the copyright infringement claim without a full trial.

Last week, the United States District Court for the Northern District of California granted Disney and Lucasfilms’ motion for summary judgment on the copyright infringement claim. Most notably, the court confirmed that there was “no question that an average consumer of the Sabacc mobile game app would recognize the images and dialogue in [Ren Ventures and Sabacc Creative’s] promotional materials as being derived from the Star Wars movies and other media.” Additionally, the court addressed the issue of fair use, but confirmed that the key factors in that determination weighed against Ren Ventures and Sabacc Creative.

Unfortunately for Disney and Lucasfilms, however, the grant of summary judgment was not entirely in their favor. On the question of whether the copyright infringement was willful, Disney and Lucasfilms had to show that the Ren Ventures and Sabacc Creative were 1) actually aware of the infringing activity; or 2) taking action with a reckless disregard for, or willful blindness to, the copyright holder’s rights. Basically, Lucasfilms and Disney have to prove that there was a blatant, reckless disregard for their copyright rights and that the defendants knew or should have known that they were infringing on the copyrights in question.

While there was no question that Lucasfilms and Disney owned the copyrighted material and that Ren Ventures and Sabacc Creative were aware of that ownership, this awareness was not enough for the court to decide, without a trial, that they were actually aware of infringing activity. While Ren Ventures and Sabacc Creative “arguably demonstrated reckless disregard or willful blindness in failing to at least investigate whether their conduct infringed upon Lucasfilms’ copyright interests, that is a question of material fact reserved for determination by a jury.”

This is an unfortunate finding for Disney and Lucasfilms because 1) further litigation is expensive and lengthy; and 2) they will have to prove willful infringement, which can be pretty difficult. If Lucasfilms and Disney are able to prove willful infringement, however, they will be able to get larger, statutory damages upon winning this suit.

That’s right folks- there is a possibility that this one might be going to a jury trial to determine whether Ren Ventures and Sabacc Creative willfully infringed.

Previously, I was wondering whether this one would settle out, but Ren Ventures and Sabacc Creative seem pretty determined to fight. Maybe now that the question of copyright infringement has been determined on summary judgment, we’ll see the defendants in this case back off and reconsider some sort of settlement. Either way, it will certainly be interesting to see what the next move is for Ren Ventures and Sabacc Creative.

Author, Caroline Womack, is a rising 3L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.