The court rejected Omni's argument, saying that Scramble's audiovisual display was sufficiently fixed due to the repeated use of certain images and sounds.

This also led the court to reject Omni's trademark argument, since any use of the "Scramble" mark was made in bad faith, in anticipation of creating a knock-off game under the same name.

[2] One of Konami's first titles was their game Scramble, a side-scrolling shooter in which the player pilots an aircraft and fires weapons at enemies.

[4][5] Scramble was first sold in the United States on March 17, 1981,[1] distributed in North and South America by Stern Electronics, who secured an exclusive license from Konami.

[1] One month after Stern introduced Scramble, Omni began marketing a visually similar game with the same title on the machine.

[14] Omni argued that Stern was only entitled to copyright protection in the written computer code stored in the machine's memory, a legal argument that had been successful in the past.

[13] Both parties claimed that they owned common law trademark rights to the word "Scramble", with Omni noting that they were the first ones to sell arcade machines bearing the mark.

"[6] The court further found that Omni's first use of the "Scramble" mark was not in good faith, and was solely in anticipation of imitating the audiovisual display of Stern's game.

[13] The University of Pennsylvania Law Review has noted the ruling as one of the earliest and leading cases where the court found copyright infringement in a video game.

[7] Loyola of Los Angeles Entertainment Law Review also cites it as the first federal appellate court to conclude that a video game qualified for copyright as an audiovisual work.

[7][1] Hemnes also summarized the efforts of defendants to say that video games lack the fixation to qualify for copyright, saying "this defense is also unavailing.

[19] The principle that video games are fixed, audiovisual works would be affirmed in Atari v. Amusement World,[7] as well as Williams Electronics v.