Full opinion text
Ruling on Defendant’s Motion for Summary Judgment [Doc. # 93] ARTERTON, District Judge. Plaintiffs Victor G. Reiling Associates (“Reiling”) and Design Innovation Incorporated (“DI”) are independent toy design developers and have brought this action against Defendant Fisher-Price Incorporated (“Fisher-Price”) alleging breach of implied-in-fact contract, misappropriation, unfair competition in violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.Stat. §§ 42-110a et seq., and common law unfair competition, in connection with plaintiffs’ designs for action figures which add an animation reel component and/or a mechanism for viewing still images to defendant Fisher-Price’s existing “Rescue Heroes” toy line. See Second Amended Complaint (“SAC”) [Doc. # 85], at ¶¶ 2-3, 41-58. Defendant moved for summary judgment on all of plaintiffs’ claims, see [Doc. # 93], and oral argument on the motion was held on October 24, 2005. For the reasons that follow, that motion will be granted in part and denied in part. I. FACTUAL BACKGROUND Plaintiff Reiling is a “small entrepreneurial toy development company” based in Kent, Connecticut, whose principal — Victor G. Reiling — is a “toy industry veteran” and former employee of both Fisher-Price and Milton Bradley (now owned by Hasbro). See Declaration of Victor G. Reiling (“Reil-ing Deck”) [Doc. # 107], at ¶¶ 2-3, 12; Agreement Def. L.R. 56(a) Stmt [Doc. # 99], at ¶¶ 7-8. Reiling does not manufacture or market toys, but instead “works with toy manufacturers to develop new toys based on [its] product concepts.” See Reiling Decl. at ¶ 3. Plaintiff DI is an “industrial design firm” that develops “prototypes and working models of toys, games and other products for manufacturers and marking groups” and is based in Avon, Connecticut. See Declaration of Bruce P. Popek (“Popek Decl.”) [Doc. # 109], at ¶ 2; Agreement Def. L.R. 56(a) Stmt, at ¶ 10. The three principals of DI — Bruce P. Popek, Bruce Bendetto, and Doug Melville, Jr. — oversee all aspects of DI’s business. See Popek Decl. at ¶ 2. Defendant Fisher-Price is “engaged in the business of designing, marketing, and selling toys and juvenile products, including action figures.” Agreement Def. L.R. 56(a) Stmt, at ¶ 1. In the late-1990s, the Fisher-Price “Boys Team” (which designs products for boys aged 3.to 6) developed the “Rescue Heroes” line of action figures “with rescue-related identities which were attractive both to preschoolers and to their parents.” Id. at ¶ 13. They were first sold to the public in December 1997. Id. at ¶ 14. These first Rescue Heroes did- not have any speech or sound effect capabilities and were thus known as “basic” figures. Many different “sub-lines” of the basic figures have been introduced since the first release in 1997. Id. at ¶ 15. Subsequent to the introduction of the Rescue Heroes figures, Boys Team designers sought to create “a premium line of Rescue Heroes that would communicate and interact.” Id. at ¶ 16. The parties dispute whether the goal of these efforts was “to communicate a play scenario to the child of the character’s mission or obstacles and dangers the character might face,” or simply “to identify the subject matter of the action figure’s speech.” PI. L.R. 56(a) Counter-Stmt [Doc. # 105], at ¶ 16. In October 1998, Reiling and DI — who frequently “cooperate on the development of new toy and game concepts and submit their concepts to toy manufacturers for possible development and production” (Reiling Decl. at ¶ 4) — presented the “Reel Heroes” concept to Paul Snyder, Fisher-Price’s inventor relations representative. See PI. L.R. 56(a) Counter-Stmt, at ¶ 17. The definition of the concept or concepts that were presented to Fisher-Price is a central dispute in this case. It is clear that the “Reel” portion of plaintiffs’ “working names” for its concept(s) was “a play on words with respect to the film reel that was first shown in the prototype,” PI. L.R. 51(a)(1) Counter-Stmt, at ¶ 21. However, plaintiffs argue that “this in no way was meant to be a limitation on the concept,” Reiling Deck at ¶ 24, and that their concept included “an image viewer in the form of a backpack for each ‘Rescue Heroes’ action figure that [would] enhance[] role play for the child by depicting the mission 'of that particular ‘Rescue Heroes’ character,” Reiling Deck at ¶ 23. They further argue that the concept did not necessarily require the use of film or the use of images on a backpack specifically, and was not necessarily limited to use with Rescue Heroes action figures and could also be used in connection with action figure accessories such as playsets or vehicles. See PI. L.R. 56(a) Counter-Stmt, at ¶¶ 21, 23; Declaration of Robert J. Lane, Jr. (“Lane Deck”) [Doc. # 94], Ex. 4 (Reiling deposition) at 155. In early 1999, the parties executed an Option Agreement, granting Fisher Price “an exclusive three-month option to license plaintiffs’ concept.” Agreement Def. L.R. 56(a) Stmt at ¶ 24. Exhibit A to the Option Agreement provides the following definition of the Reel Heroes concept: Submitted concept extends cartoons to action figures play pattern. The concept is a battery operated film reel that is activated when the child pushes a button on the backpack of the action figure. The child may then look through the viewer on the backpack to see the film. The concept may include a hand-held “camera” with shutter that is operated by the child. The concept may be incorporated into the assorted Fisher-Price Rescue Heroes action figures. The unique aspect of the concept is the combination of existing action figures with film for play pattern. See Lane Deck Ex. 25, at Ex. A. Plaintiffs’ prototype was shown to Ken Morton, then the Design Manager of the Boys Team, and to two other Boys Team Members— Tyler Berkheiser and Chris Pardi. See Agreement Def. L.R. 56(a) Stmt, at ¶ 28. Ultimately, Fisher-Price chose not to execute its option and in March 1999, it rejected plaintiffs’ submission. See id. at ¶¶ 27, 81. In May 1999, plaintiffs submitted a revised execution of their concept to Fisher-Price. See PI. L.R. 56(a) Counter-Stmt, at ¶ 32; Reiling Decl. Ex. X. Plaintiffs contend that they sought to address Fisher-Price’s concerns regarding the cost of executing their initial concept, and thus eliminated the motor, batteries and other parts from the original submission, in an attempt to “demonstrate] to Fisher-Price that there were alternative ways to execute the concept.” PI. L.R. 56(a) Counter-Stmt, at ¶¶ 32-33. Plaintiffs’ second submission proposed the use of a “viewer” which, “[u]sing ambient light and a tinted device,” would have “the capability of showing 8 or more scenes that are particularly appropriate to individual heroes.” Reiling Decl. Ex. X. While plaintiffs were initially in agreement that Fisher-Price rejected the 1999 submission in July 1999, neither party can locate a rejection letter and plaintiffs now contend that they do not recall any oral communication with Fisher-Price specifically rejecting the submission. See id. at ¶ 35. Plaintiffs made a third submission to Fisher-Price in December 2000, which included annotated drawings of an action figure with both “a backpack and a digital camera device (which the figure held in its hand) containing a Viewmaster-style film disk with six or more images.” Agreement Def. L.R. 56(a) Stmt, at ¶¶ 36-37; Reiling Decl. Ex. Y. The Viewmaster disk would display images relating to the particular figure’s “theme activities.” See Reiling Decl. Ex. Y. Again, plaintiffs’ revised submission sought to “alleviate the costs of film strips that were of prior concern,” by using discs that would display still images. See Reiling Decl. Ex. Y. The parties dispute whether it was “necessary to the concept that the child place one eye up to a magnifying lens and look into the interior of the backpack, or that a lever be used,” as was shown in plaintiffs’ drawings. See PI. L.R. 56(a) Counter-Stmt, at ¶ 38; Reiling Decl. Ex. Y. The parties dispute whether any Boys Team designer saw the 2000 submission, but do not dispute that Fisher-price rejected the submission in January 2001. See PI. L.R. 56(a) Counter-Stmt, at ¶¶ 39-40. Fisher-Price ultimately released their premium Rescue Heroes figure line, and sub-lines, beginning in early 2000, marketed under the “Voice Tech” name. Plaintiffs have not asserted any claims concerning the first of these figures, but have asserted claims against three of the sub-lines, introduced between 2001 and 2003, see SAC ¶¶ 28, 35, 38, a new line of Rescue Heroes toys entitled the “Optic Force” Rescue Heroes, certain Rescue Heroes playsets, vehicles, and accessories, and certain videos, DVDs, computer games, and video games. See SAC ¶¶ 28, 35-39. II. STANDARD Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). A party seeking summary judgment “bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish [its] right to judgment as a matter of law.” Rodriguez v. City of N.Y., 72 F.3d 1051, 1060 (2d Cir.1995) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). “The duty of the court is to determine whether there are issues to be tried; in making that determination, the court is to draw all factual inferences in favor of the party against whom summary judgment is sought, viewing the factual assertions in materials such as affidavits, exhibits, and depositions in the light most favorable to the party opposing the motion.” Id. (citations omitted). “If reasonable minds could differ as to the import of the evidence ... and if there is any evidence in the record from any source from which a reasonable inference in the nonmoving party’s favor may be drawn, the moving party simply cannot obtain a summary judgment.” R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir.1997) (internal quotation, citation, and alteration omitted). III. DISCUSSION A. Applicable Law The parties appear to be in agreement that New York law governs all of plaintiffs’ claims, except for their CUTPA claim, which is discussed below. See PI. Reply Mem. of Law in Support of PI. Motion for Leave to File a Sec. Am. Compl. [Doc. # 53], at 6; PI. Opp. Mem. of Law [Doc. # 135], at 51 n. 22. B. P & A Disclaimer of Liability Since commencing his dealings with Fisher-Price in 1983, Reiling signed several (Fisher-Price avers 27 in total) Policy and Agreement (“P & A”) forms. See Def. Mem. of Law. [Doc. # 100], at 18; Lane Decl. Exs. 16, 17, 20. In 1994, Reiling signed a P & A purporting to be a blanket agreement (as opposed to a concept-specific agreement) which would govern all concept ideas submitted to Fisher-Price. Lane Decl. Ex. 20; see also Lane Deck Ex. 4 (Reiling deposition), at 68-70. Fisher-Price argues that it is entitled to summary judgment on all of plaintiffs’ claims because the 1994 P & A expressly disclaims all claims brought by plaintiffs. See Def. Mem. of Law, at 46-48; Def. Reply Mem. [Doc. # 122], at 11-13. Paragraph 3 of the 1994 P & A provides: You must understand and agree that in return for receiving and examining your disclosure, we are released from any liability in connection with the receipt and examination of your disclosure, except as to such liability that may accrue under any valid patents or copyrights that you now or hereafter own or control. See Lane Decl. Ex. 20 at ¶ 3. The 1994 P & A further provides that “[t]his Agreement shall have an indefinite term commencing on 12/15/94 and expiring upon thirty (30) days written notice.” Id. at ¶ 6. Defendant contends that the 1994 P & A, in contrast to earlier P & As signed by plaintiff Reil-ing which were concept-specific, was a blanket P & A covering all future submissions. Compare Lane Decl. Ex. 17 (attaching concept-specific P & As signed by Reiling), with Lane Decl. Ex. 18 (1994 P & A). Plaintiffs argue that the disclaimer in the P & A is not legally enforceable to bar their claims here and that, in any case, plaintiff DI’s claims cannot be barred by the disclaimer because it did not sign the P & A. The 1994 P & A was signed by Reiling on December 15, 1994. See Lane Decl. Ex. 20 at 2. Although plaintiff DI did not sign the agreement, Fisher-Price seeks to demonstrate that Reiling was acting as DI’s agent, or that it had actual or apparent authority to act as DI’s agent, in order to bind plaintiff DI to the 1994 P & A. Fisher-Price has not shown this agency issue to be factually undisputed. “Standard principles of agency [include] that an agent must have authority, whether apparent, actual or implied, to bind his principal.” Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 122 (2d Cir.1998); AEB & Assocs. Design Group, Inc. v. Tonka Corp., 853 F.Supp. 724, 732 (S.D.N.Y.1994) (finding express authority where plaintiff toy development company entered into agreement with a designers’ representative, by which the representative would “present [plaintiffs] ideas to toy companies, and the parties agreed to share any revenues generated from such presentations”). First, DI did not begin working with Reiling until after Reiling signed the 1994 P & A. See Benedetto Decl. at ¶ 9. Additionally, there is a genuine dispute as to whether, even after Reiling and DI began working together, Reiling had the authority to act as DI’s agent. For example, while one of DI’s principals, Bruce Popek, testified that “[i]n connection with the Reel Heroes, Vic Reiling was representing Design Innovation and himself [in] [negotiating with and dealing with Fisher-Price,” see Lane Decl. Ex. 6 at 128-129, when asked whether Reiling “ha[d] any authority to bind Design Innovation,” however, Popek answered “No .... when we enter into contracts with toy companies and Mr. Reiling, it’s reviewed by both of us, and designed by both of us.” Reply Declaration of Russell D. Dize (“Dize Reply Decl.”) [Doc. # 128], Ex. A at 155-56. Indeed, Messrs. Reiling, Popek and Benedetto have all submitted declarations stating that there was no agency agreement between Reiling and DI, that Reiling did not have the authority to bind DI, and that the relationship between Reiling and DI was that of “joint inventors.” See Reiling Decl. at ¶ 5; Popek Deck at ¶ 6; Benedetto Deck at ¶ 6. It could also be inferred from the fact that Fisher-Price drafted the Option Agreement for the signature of both Reiling and DI, see Reiling Deck Ex. V at 1, 5, and made separate payments to DI and Reiling under the Option Agreement, that Fisher-Price did not understand Reiling to have the authority to act as DI’s agent. See Dize Reply Deck Ex. E. Fisher-Price’s claim that DI is bound by Reiling’s 1994 P & A on a partner-as-agent theory also cannot be decided as a matter of law because different inferences can be drawn from the evidence as to whether Reiling and DI had a legally-recognized partnership. For example, when referring to the business arrangement that DI typically has with Reiling, Mr. Popek stated that DI and Reiling are typically “partners,” rather than Reiling being paid by DI on an hourly basis, see Lane Reply Deck [Doc. # 118], Ex. F at 22; Mr. Reil-ing concurred, see id., Ex. A at 76. However, Reiling and DI are separate corporate entities organized under the laws of Connecticut, see SAC ¶¶ 6-7, and the record contains no partnership agreement or other written agreement documenting their relationship, other than documents generated by toy companies that accept their submissions (such as the Option Agreement), see Dize Reply Deck Ex C (Popek deposition) at 22-28, Ex. D (Bene-detto deposition) at 25-27. Lastly, Fisher-Price’s argument that DI can be bound by the 1994 P & A because DI and Reiling are co-owners of intellectual property also fails. Fisher-Price cites Willingham v. Star Cutter Co., 555 F.2d 1340 (6th Cir.1977), for the proposition that “co-owners are at the mercy of each other ... [E]aeh ... may make, use or sell the patented invention without accounting to the other owners.... [A] co-owner can even grant a license to a third party without consent of the other owners and neither the co-owner licensor nor the third-party-licensee is liable to the other owners.” See id. at 1344. The holding in Willingham, however, merely provides that a co-owner may grant a license to a third-party without its co-owners’ consent. Neither the parties nor the Court have found any case whose reasoning could support extending Willingham to find that Reiling’s execution of the P & A prior to the commencement of its business relationship with DI can constitute a waiver of DI’s rights to sue Fisher-Price, merely because the concept submitted to Fisher-Price is co-owned by Reiling. Thus, a genuine issue of material fact exists as to whether Reiling had actual, apparent, or implied authority to act as DI’s agent, both at the time Reiling signed the 1994 P & A, and at any time thereafter. Accordingly, the 1994 P & A does not bar plaintiff DI’s claims at this stage. Even though the 1994 P & A may not be enforceable against plaintiff DI to bar its claims against Fisher-Price, it is enforceable against plaintiff Reiling barring claims related to defendant’s “receipt and examination of [Reiling’s] disclosure.” Lane Decl. Ex. 20 (Option Agreement). As plaintiffs concede, other courts have upheld waiver language remarkably similar to the language in the 1994 P & A. See, e.g., M.H. Segan Ltd. P’ship v. Hasbro, Inc., 924 F.Supp. 512, 526 (S.D.N.Y.1996) (applying New York law and upholding a contract waiver providing that the inventor would be “limited to any rights and remedies Inventor is accorded under United States Patent and Copyright Laws” and concluding that the waiver “unambiguously preeludefd] all of plaintiffs implied contract claims based on plaintiffs post-Waiver submissions to [defendant]”), abrogated on other grounds by, Nadel v. Play-By-Play Toys & Novelties, Inc., 208 F.3d 368 (2d Cir.2000); see also Kearns v. Ford Motor Co., 203 U.S.P.Q. 884, 889 (E.D.Mich.1978)(applying Michigan law and upholding the enforceability of a waiver “relinquishing] all rights and remedies against defendant with respect to [plaintiffs] disclosures except those provided for by the patent and copyright[ ] laws”). While plaintiffs contend that the purported disclaimer is unenforceable against Reiling because the P & A was of indefinite duration and the disclaimer therefore constitutes a purported waiver of future unknown rights, courts applying New York law have held otherwise, see, e.g., M.H. Segan, 924 F.Supp. at 526; AEB, 853 F.Supp. at 732 (upholding the enforceability of a confidentiality agreement including liability disclaimers that provided that its terms “shall be in perpetuity unless modified or terminated as specified herein”), and the cases plaintiffs cite do not support a finding to the contrary. When Reiling signed the 1994 P & A, it was clear from the unambiguous language of the waiver that Reiling was limiting its right to sue Fisher-Price in connection with its submissions to actions under federal statutory intellectual property protection schemes. As this was a blanket P & A with an indefinite term (in contrast to the concept-specific P & As Reiling had signed previously), the language was clear that this waiver applied to future Reiling submissions. See NetTech Solutions, 2001 WL 1111966, at *8 (“[A] waiver must be interpreted to encompass only those future claims the parties could have reasonably expected might be brought against each other at the time it was agreed upon.”); City of N.Y. v. State of N.Y., 40 N.Y.2d 659, 389 N.Y.S.2d 332, 340, 357 N.E.2d 988 (1976) (“A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it.”) (internal quotation and citation omitted). Plaintiffs’ argument that the 1994 P & A was a contract of adhesion and therefore unenforceable because it was not fairly negotiated and/or because Reiling did not understand its terms also fails as a matter of law. See Reznor v. J. Artist Mgmt., Inc., 365 F.Supp.2d 565, 577 (S.D.N.Y. 2005) (“[New York] courts have rarely found a clause to be unconscionable in contracts involving two commercial entities, a situation in which negotiation is presumed possible.... [T]he parties to a contract are basically free to make whatever agreement they wish, no matter how unwise it might appear to a third party.”) (internal quotation and citation omitted); Kublan v. Hasbro Toy Division of Hasbro, 50 U.S.P.Q.2d 1539, 1540 n. 1 (S.D.N.Y. 1999) (rejecting claims of unconscionability and enforcing confidentiality waiver signed between the parties, noting, “[a]n unconscionable contract is characterized by bargaining power so disproportionate to preclude any meaningful choice and by terms unreasonable favorable to one party.... Plaintiff was an experienced toy inventor at the time he entered into this commercial transaction seeking something for his own profit”) (emphasis added). Here, Mr. Reiling testified that he had signed blanket P & As for “a number of companies.” See Lane Decl. Ex. 4 at 62. Additionally, plaintiffs argue that the disclaimer in the P & A is unenforceable because the P & A had seemingly perpetual duration and thus violates public policy. However, because the P & A contained a termination provision, it is enforceable notwithstanding the absence of a specific termination date. See Payroll Express Corp. v. Aetna Cas. & Sur. Co., 659 F.2d 285, 291 (2d Cir.1981) (“New York limits that policy [of avoiding perpetual commitments] to contracts having no termination provisions and has held it inapplicable to contracts of the type before us here, which do provide for termination or cancellation upon the occurrence of a specified event.”). Accord Nicholas Labs. Ltd. v. Almay, Inc., 900 F.2d 19, 21-22 (2d Cir.1990) (affirming district court’s enforcement of an agreement of seemingly perpetual duration, where the agreement provided for the right to terminate upon the occurrence of certain specified events). Accordingly, defendant’s motion for summary judgment is granted as to all of plaintiff Reil-ing’s claims related to its submissions to Fisher-Price, none of which are federal statutory claims. Plaintiffs’ CUTPA claim and common law claim of unfair competition, however, to the extent they are based on alleged blackballing and tortious interference with the business relationship between Reiling and DI, arise out of plaintiffs’ suit, not directly out of their submission (although obviously the submission is the subject matter of the suit), and thus these claims are not barred by the 1994 P & A. C. Breach of Impliedr-in-Fact Contract Claim Plaintiffs’ breach of implied-in-fact contract claim alleges that facts and circumstances surrounding plaintiffs’ submission of their toy concept to Fisher-Price and the subsequent conduct of the parties created an implied-in-fact contract by which Fisher-Price agreed to compensate plaintiffs in the event that Fisher-Price used plaintiffs’ concept. See SAC ¶¶41-47. An implied-in-fact contract arises in the absence of an express agreement and is based on the conduct of the parties from which an intent to enter into a contract, and the terms of that contract, may be inferred. The relevant factors for determining whether an enforceable implied-in-fact contract exists are: “(1) whether there has been an express reservation of the right not to be bound in the absence of a writing; (2) whetherthere has been partial performance of the contract; (3) whether all of the terms of the alleged contract have been agreed upon; and (4) whether the agreement at issue is the type of contract that is usually committed to writing.” Winston v. Mediafare Entm’t Corp., 777 F.2d 78, 80 (2d Cir.1985); see also AEB, 853 F.Supp. at 731 (“An implied-in-fact contract arises in the absence of an express agreement, and is based on the conduct of the parties from which a fact-finder may infer the existence and terms of a contract.”). Defendant claims that it is entitled to summary judgment on the breach of implied-in-fact contract claim because: (1) plaintiffs explicitly disclaimed any implied obligations in the 1994 P & A; (2) the Option Agreement is an express contract dealing with the same subject matter as the purported implied-in-fact contract and therefore no implied-in-fact contract can be found to exist as a matter of law; (3) the purported implied-in-fact contract is too indefinite to survive; and (4) the alleged implied-in-fact contract is barred by the Statute of Frauds. Because the Court concludes that the Option Agreement constitutes an express agreement regarding the same subject matter as the alleged implied-in-fact contract, the claim is barred as a matter of law, and the Court need not consider defendant’s other arguments. As noted above, an implied-in-fact contract arises only in the absence of an express agreement, and thus the absence of an express agreement covering the same subject matter is a prerequisite to finding an implied-in-fact contract. See AEB, 853 F.Supp. at 731 (citing, inter alia, Julien J. Studley, Inc. v. N.Y. News, Inc., 70 N.Y.2d 628, 518 N.Y.S.2d 779, 780, 512 N.E.2d 300 (1987)). Defendant argues that plaintiffs’ implied-in-fact contract claim is barred by the parties’ Option Agreement which, it alleges, covers the same subject matter— i.e., Fisher-Price’s obligation to compensate plaintiffs in the event Fisher-Price used plaintiffs’ concept. DI contends, however, that the Option Agreement does not bar its claim because it is not based on the expired Option Agreement, but rather “on the custom and practice in the toy industry, the parties’ prior course of dealing with [Fisher-Price] and the parties’ conduct.” PI. Opp. Mem. at 44. Plaintiffs reference the Court’s conclusion in an earlier ruling that neither the plaintiffs’ breach of express contract claim, which has now been withdrawn, nor the implied-in-fact contract claim “was pled as a breach of the option agreement.” See Victor G. Reiling & Assocs. v. Fisher-Price, Inc., 03CV222 (JBA), 2008 WL 21785580 (D.Conn. July 31, 2003) (ruling on defendant’s motion to transfer venue). However, even if plaintiffs’ implied-in-fact contract claim is not a proxy for a claim of breach of the Option Agreement (which it could not be, because the Option Agreement expired on May 1, 1999, before Fisher-Price’s release of the accused products), that agreement may still bar plaintiffs’ claim here because it covers the same subject matter as the alleged implied-in-fact contract. Plaintiffs’ breach of implied-in-fact contract claim alleges that the “conduct of the parties created a contract implied-in-fact between Plaintiffs and Fisher-Price, pursuant to which Fisher-Price agreed to compensate Plaintiffs in the event Fisher-Price actually used Plaintiffs’ novel product concept as set forth in their first, second and third submissions to Fisher-Price.” SAC ¶ 42; see also Dize Decl. Ex. N (plaintiffs’ interrogatory responses) at 4 (stating that the custom and practice in the toy industry, the conduct of the parties, and the past course of dealing between plaintiff Reiling and Fisher-Price “dictates that if Fisher-Price used Plaintiffs’ concept by incorporating it into a product or line of products, Fisher-Price would pay Plaintiffs a reasonable royalty on sales of said products”). Thus, the subject matter of the alleged implied-in-fact contract is the same as the subject matter in the Option Agreement, which provided the terms by which Fisher-Price could elect to use and/or acquire plaintiffs’ concept and compensate plaintiffs therefor. See Lane Decl. Ex, 25; see also AEB, 853 F.Supp. at 731-33 (finding that a confidentiality agreement that set forth the rights and obligations of the parties with respect to the submission of toy concepts presented by plaintiffs agent to defendant precluded plaintiffs implied-in-fact contract claim). That the Option Agreement bars plaintiffs’ implied-in-fact contract claim is further illustrated by the facts and circumstances to which DI points as the basis for the alleged implied-in-fact contract. Plaintiffs explain that the purported implied-in-fact contract “formed during the initial meeting between Plaintiff Reiling and Paul Snyder, [and] th[r]ough subsequent telephone conversations and correspondence between the parties.” See Dize Decl. Ex. ” N at 4-5. While plaintiffs state that “the exact date of the formation of the implied-in-fact contract between Fisher-Price and Plaintiffs is unknown,” the conduct cited in interrogatory responses all occurred in late 1998 and plaintiffs’ expert testified that the “facts supporting the implied contract [are] the submission itself, the dealings between the parties up to the option agreement and the signing of the option agreement.” See Lane Decl. Ex. 12 at 288. The Option Agreement was executed in February of 1999. See Lane Decl. Ex. 25 at 5. Thus, all of the conduct cited as the basis for the alleged implied-in-fact contract occurred before the execution of the Option Agreement and is related to its subject matter, dictating a conclusion that the Option Agreement reflects the entire agreement between the parties as to that subject matter, i.e., Fisher-Price’s obligation to compensate plaintiffs in the event Fisher-Price used plaintiffs’ concept. As a fellow federal district court judge reasoned, “[t]he logic at work here is obvious: If the parties have an express contract that deals with a subject, it makes little sense to conclude that they in fact agreed to additional terms but simply decided to leave them out of the express contract.” Radio Today, Inc. v. Westwood One, Inc., 684 F.Supp. 68, 71 (S.D.N.Y. 1988). That the Option Agreement is now expired does not by itself permit a finding of existence of an implied-in-fact contract, where no conduct post-dating the execution of the Option Agreement is referenced to indicate that the parties’ intended to enter into any implied-in-fact contract. Compare Watts v. Columbia Artists Mgmt. Inc., 188 A.D.2d 799, 591 N.Y.S.2d 234, 235-37 (N.Y.App.Div.1992) (concluding that an implied-in-fact contract had been formed, on the basis of the parties’ conduct after the expiration of the parties’ written contract concerning the same subject matter). Thus, DI’s implied-in-fact contract claim is precluded by the existence of the Option Agreement and defendant’s motion for • summary judgment on this claim is granted. D. Misappropriation Claim alleging misappropriation of idea(s) must demonstrate the following: (1) the concept is concrete, see M.H. Segan, 924 F.Supp. at 526; (2) the concept is novel, see id; (3) the concept was disclosed in the context of a legal relationship in the form of a fiduciary relationship, an express or implied-in-fact contract, or quasi-contract — including a confidential relationship, see id.; Lehman v. Dow Jones & Co., Inc., 783 F.2d 285, 299 (2d Cir.1986); and (4) the defendant used the concept, see AEB, 853 F.Supp. at 734. Fisher-Price argues that it is entitled to summary judgment on the misappropriation claim because: (1) plaintiffs’ Reel Heroes concept was not concrete, (2) plaintiffs’ Reel Heroes concept was not novel, (3) no confidential relationship existed between plaintiffs and Fisher-Price, and (4) Fisher-Price did not use plaintiffs’ concept. i. Concreteness Defendant contends that plaintiffs’ Reel Heroes concept is not sufficiently “concrete” to sustain a misappropriation claim. In order to be protectible, the Reel Heroes concept must be in a “fixed and concrete form [so] as to indicate a protectible idea.” See Educ. Sales Programs, Inc. v. Dreyfus Corp., 65 Misc.2d 412, 317 N.Y.S.2d 840, 845 (N.Y.Sup.1970); see also Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 296 N.Y.S.2d 771, 776, 244 N.E.2d 250 (1968) (“[A]n author has no property right in his ideas unless [they are] given embodiment in a tangible form.”) (internal quotation and citation omitted). Defendant refers to the definition of plaintiffs’ concept offered in the report of plaintiffs’ expert, James Kipling, and argues that the definition is “a nearly pure abstraction with no concrete form or content.” Def. Mem. of Law at 31. Plaintiffs, however, rely on the definition set out in their responses to defendant’s second set of interrogatories. See Pl. Mem. of Law at 27. Thus, the operative definition claimed by plaintiffs of the Reel Heroes concept is: Adding an image component to the backpack of each “Rescue Heroes” action figure that enhanced role play for the child by depicting the mission of that particular “Rescue Heroes” character. Dize Decl. Ex. L at 1. This definition is consistent with, and embodied in, the concepts presented in plaintiffs’ three submissions to defendant — of an image-displaying device to be used on the equipment of the Rescue Heroes action figures that enhanced role play by depicting the mission of the particular figure and/or obstacles that figure might face. Along with the concept submission form, plaintiffs also submitted numerous sketches, written material, and a prototype to Fisher-Price in 1998, 1999, and 2000. See Reiling Decl. Exs. P-R (written description, drawings, and prototype submitted in 1998); Reiling Decl. Ex. S (idea for “Filmore Schotz” character, also submitted in 1998); Reiling Decl. Ex. X (1999 letter to Fisher-Price with attached revised drawing); Reiling Decl. Ex. Y (2000 letter to Fisher-Price with attached revised drawings). Plaintiffs’ definition coupled with their submissions provide an eviden-tiary basis from which reasonable jurors could find plaintiffs’ concepts sufficiently concrete and tangible to be protectible. Compare Educ. Sales Programs, 817 N.Y.S.2d at 841, 845 (concluding that plaintiffs concept “to make tape players and monthly tape cassettes containing educational and promotional material available free of charge to independent mutual fund salesmen, with the players, cassettes and contents to be purchased from plaintiff’ was “quite malleable and not in such fixed and concrete form as to indicate a protecti-ble idea”); Link Group Int’l v. Toymax, Inc., No. 97-CV-670 (JCH), 2000 U.S. Dist. LEXIS 4567, at *38 (D.Conn. Mar. 17, 2000) (plaintiffs concept was not sufficiently concrete where plaintiff submitted a sample and sketches of only one of the concepts and no updated prototype or schematics of that concept or any of plaintiffs related concepts were ever submitted). ii Novelty To prove misappropriation under New York law, a plaintiff must show that the idea defendant allegedly misappropriated was “original or novel in absolute terms.” Nadel v. Play-By-Play Toys & Novelties, Inc., 208 F.3d 368, 378 (2d Cir.2000). Determining whether a concept meets this standard requires a fact-specific inquiry and depends on several factors, including: [T]he idea’s specificity or generality (is it a generic concept or one of specific application?), its commonality (how many people know of this idea?), its uniqueness (how different is this idea from generally known ideas?), and its commercial availability (how widespread is the idea’s use in the industry?). Id. The inquiry is whether the idea in question “exhibited genuine novelty or invention or whether it was a merely clever or useful adaptation of existing knowledge.” Id. at 380 (internal quota1tion and citation omitted); see also Hogan v. DC Comics, 48 F.Supp.2d 298, 314 (S.D.N.Y.1999) (“The test for novelty is a stringent one: the idea must ‘show genuine novelty and invention, and not merely a clever or useful adaptation of existing knowledge.’ ”) (quoting Paul v. Haley, 183 A.D.2d 44, 588 N.Y.S.2d 897, 903 (N.Y.App.Div.1992)). The Second Circuit has noted that it is only appropriate to resolve novelty as a matter of law in cases where “an idea [is] so unoriginal or lacking in novelty that its obviousness bespeaks widespread and public knowledge of the idea.” See Nadel, 208 F.3d at 378-79. Reel Heroes Concept Fisher-Price argues that plaintiffs’ Reel Heroes concept fails to meet Nadel’s requirement for originality or novelty “in absolute terms.” Using plaintiffs’ definition, consistent with plaintiffs’ three submissions to Fisher-Price, the challenged concept is the use of a device or mechanism for displaying images on the backpack of a Rescue Heroes figure to depict that particular character’s mission so as to enhance play value for the child by allowing the child to feel as though he or she is being that action figure — by viewing what that action figure might view — and/or by displaying images depicting that figure in action, on a “mission,” prompting role play about that figure. Applying the Na del factors — specificity, commonality, uniqueness, commercial availability — it is apparent that genuine issues of material fact exist requiring a jury determination of whether plaintiffs’ Reel Heroes concept was sufficiently “original or novel in absolute terms.” First, there is a genuine dispute as to whether prior art rendered plaintiffs’ concept non-novel. Defendant offers six pieces of prior art that it claims “satisf[y]” plaintiffs’ Reel Heroes concept and render it non-novel. See Def. Mem. of Law, at 38-42. Fisher-Price also contends that the rejection of the Reel Heroes concept by another toy company (Toy Biz) illustrates that the concept was not novel. See Lane Decl. Ex. 37 (“[T]his is an idea that Toy Biz has worked with in the past.”); Lane Decl. Ex. 6 (Popek deposition testimony) at 33 (discussing the Toy Biz rejection and noting “since [Toy Biz representative Tom McCormick] considered [Toy Biz’s projector mechanism] to be a variation of the concept that [plaintiffs] showed him, he felt that [plaintiffs’] idea was not novel to Toy Biz”). Plaintiffs dispute the relevance of the claimed prior art to which Fisher-Price refers, and point to testimony which they claim could persuade a reasonable jury that the Reel Heroes concept was novel. Mr. Reiling states that the Reel Heroes concept had specific application, was not commonly known in the industry, i.e., no other companies previously had executed the concept by using images “on a backpack to enhance role play by depicting the character’s mission or obstacles and dangers the character might face,” and was not commercially available in the marketplace at the time plaintiffs’ three submissions were made to Fisher-Price. See Reiling Decl. ¶45. Accord Kipling Decl. ¶¶ 52-54 (distinguishing Fisher-Price’s prior art examples). Additionally, several Fisher-Price designers and other representatives testified that they could not recall the concept, so defined, ever having been marketed or sold as of the time the Reel Heroes concept was presented to Fisher-Price. See Dize Decl. Ex. B (Snyder deposition) at 143-45; Dize Decl. Ex. D (Berkheiser deposition) at 73-76; Dize Ex. G (Bauman deposition) at 47-48. See also Dize Decl. Ex. A (Clut-ton deposition) at 109-11 (novelty was not one of his reasons for the rejection of plaintiffs’ concept). Whether the alleged prior art renders plaintiffs’ concept non-novel is for a jury to decide. For example, a jury could conclude that the Toy Biz Projector Figures, including the Wolverine figure discussed at oral argument, are sufficiently distinct from plaintiffs’ concept so as not to render plaintiffs’ concept non-novel. The Toy Biz Projector Figures project an image from their chest, rather than on backpack devices. Additionally, the images displayed by the Toy Biz Projector Figures, while potentially related to the figure itself, do not necessarily depict the character on a mission in a way to prompt role play by making the child feel as though he or she is viewing what the figure sees (as opposed to what the figure does). Lastly, the Toy Biz Projector Figures are not Rescue Heroes characters. Thus, the concept embodied in the Toy Biz Projector Figures reasonably could be found distinct from plaintiffs’ concept, in that the Toy Biz figures embody a clever projection device which can show the figure in action, while plaintiffs’ concept incorporates an image-displaying device on a Rescue Heroes figure’s equipment to allow the child to role play as or with that particular figure. A jury also could reasonably conclude that the Secret Wars figures — including the Captain America figure discussed at oral argument — embody a concept different from plaintiffs’. The Secret Wars figures include super heroes and villains with shields containing lenticular lenses with images of that figure in action. However, like the Projector Figures, while the Secret Wars shields depict aspects of the figure’s actions, they do not do so in a way that provides the child with the feeling that he or she is that particular figure or is viewing the missions and action scenes as the particular figure would be viewing them. Additionally, a genuine dispute exists as to whether plaintiffs’ Reel Heroes concept was novel or merely a combination of non-novel elements. See Nadel, 208 F.3d at 380. For example, Fisher-Price points to testimony implying that the Reel Heroes concept was simply a combination of a movie viewer (the “Viewmaster technology and film”) and Fisher-Price’s Rescue Heroes action figures. Lane Deck Ex. 4 (Reiling deposition) at 189-90; Lane Deck Ex. 12 (Kipling deposition) at 227-29. See also Lane Deck Ex. 6 (Popek deposition) at 111-12 (the combination of a lenticular image on an earlier product and a Rescue Heroe’s backpack would be covered by the Reel Heroes concept); Lane Deck ¶¶ 41-50 (citing testimony). Plaintiffs’ evidence cited in the preceding paragraphs, augmented by the circumstances and significance which could be attached to the Option Agreement between the parties, rebuts this testimony by demonstrating what may be found novel about plaintiffs’ concept, and thus creates a genuine issue of material fact for trial. See also Dize Decl. Ex. A (Clutton deposition) at 141 (a combination of existing elements could be sufficiently novel to warrant Fisher-Price paying the inventor a royalty if the combination was “unique”); Dize Decl. Ex. B (Bollinger deposition) (unique combination of known elements could be “combined to create a product that is novel in its own right”). In sum, the summary judgment record shows genuine issues of material fact on the element of novelty of plaintiffs’ Reel Heroes concept which defeat defendant’s motion for summary judgment on these figures on this ground. Filmore Schotz Concept Plaintiffs claim that defendant’s “Telly Photo” incorporates their Filmore Schotz concept. Fisher-Price contends that plaintiffs’ separate concept for a cameraman action figure, “Filmore Schotz,” is not sufficiently novel to be actionable. Plaintiffs’ concept for the cameraman action figure was a “TV cameraman holding a TV camera ... with a window on top, through which a child could look and see out of the camera lens ... giving the impression that he was viewing what the cameraman figure was ‘filming’ ”. See Agreement Def. L.R. 56(a) Stmt, at ¶ 41. Defendants contend that this concept was not novel in 1998 when first submitted to Fisher-Price and that “Fisher-Price had itself sold a TV cameraman action figure as early as the 1970s. That figure also came with a TV camera that the child could look through to see what the cameraman was ‘filming.’ ” Bollinger Decl. at ¶ 47; Lane Decl. Ex. 5 (Popek deposition) at 57 (“Q. So action figures who were photographers carrying TV cameras were not new in the fall of 1998? A. No, it had been done before. Q. So that is not part of the novelty of this idea using a photographer action figure? A. Absolutely not. Q. Even one carrying a TV camera, that is not a new idea? A. Oh no.”). Plaintiffs, however, clarify that they claim novelty not for the idea of a cameraman figure generally, but for the design of this particular cameraman action figure, “including the fact that he was holding an optical camera (which enhanced mobile play value) in one hand,” through which a child could look and view what the camera was “filming,” and was holding a microphone in the other hand. PL Mem. of Law at 36; accord Reiling Decl. ¶ 50; Kipling Decl. ¶ 54(d). Both Mr. Reiling and plaintiffs’ expert Kipling testified that the 1970s cameraman was “certainly not an action figure, it is more fairly characterized as a doll,” Reiling Decl. at ¶ 50; Kipling Decl. at ¶ 54(d), and that the 1970s product was in fact “a series of figures comprising a TV news camera crew having a child-size camera wheeled around and carried by a van that is part of the set,” Kipling. Decl. ¶ 54(d), and thus “bears no resemblance to plaintiffs’ concept, which involved an attempt to draw an association between the action figure and the figure’s mission,” Reiling Decl. at ¶ 50. Plaintiffs also reference testimony that Fisher-Price now pays royalties to a company known as “Bang Zoom” for the “optical camera technology” used in Fisher-Price’s Telly Photo figure, which plaintiffs claim belies Fisher-Price’s contention that plaintiffs’ Filmore Schotz concept is identical to the one Fisher-Price developed in the 1970s, otherwise it would not have such royalty obligations. The evidence is such that a jury could reasonably conclude that the 1970s cameraman marketed by Fisher-Price is sufficiently dissimilar that it does not render plaintiffs’ Filmore Schotz concept non-novel. Thus, genuine issues of material fact exist as to the novelty of plaintiffs’ Filmore Schotz concept sufficient to preclude summary judgment on this ground. in. Existence of the Requisite Relationship In order to succeed on a misappropriation claim, a plaintiff must demonstrate that an idea was disclosed in the context of a particular legal relationship, including a confidential relationship. Defendant argues that it is entitled to summary judgment on plaintiffs’ misappropriation claim because the 1994 P & A “expressly disclaimed the formation of any confidential relationship.” Def. Mem; of Law at 23, citing, inter alia, M.H. Segan, 924 F.Supp. at 526 (holding that nearly identical waiver language “negates the existence of a legal relationship based on a ... confidential relationship”). However, as discussed above, the 1994 P & A may not be binding and enforceable against DI as it was not a signatory to that agreement and disputed evidence exists as to whether Reiling could or did bind DI to that agreement. The 1992 P & A signed by DI, see Lane Decl. Ex. 18, cannot preclude DI’s misappropriation claim because that agreement was concept-specific and therefore inapplicable to the submissions at issue here. While Fisher-Price proffers testimony that confidentiality of an inventor’s submissions is not a standard industry practice, Mr. Kipling testifies that some toy companies assume the existence of a confidential relationship and that the parties’ Option Agreement gave rise to a confidential relationship because it prohibited plaintiffs from showing their concept to others during the term of the agreement and obligated them to “treat in strictest confidence” any information related to their concept, see Kipling Deel. ¶¶ 15(b), 21(d). Other of plaintiffs’ witnesses testified that they expected that their submissions to Fisher-Price of the Reel Heroes concept would be held in confidence and that the Option Agreement confirmed that understanding. See Reiling Deel. ¶ 22; Ex. V at ¶¶ 5, 8; Popek Deel. ¶ 17. Defendant’s expert had a similar expectation. See Dize Deel. Ex. C (Bollinger deposition) at 52-54, 206-09. Thus, summary judgment on DI’s misappropriation claim on the ground of absence of the requisite confidential relationship is inappropriate. iv. Use Defendant contends that summary judgment on the misappropriation claim is warranted because no genuine issue of material fact exists as to whether Fisher-Price actually used plaintiffs’ concepts. Defendant further contends that plaintiffs are bound by the definition of their Reel Heroes concept in the Option Agreement. Use of a plaintiffs concept by a defendant can be inferred by: (1) a showing of substantial similarity between the plaintiffs concept and the accused product, and (2) access of the defendant to the purportedly misappropriated concept. See generally Ball v. Hershey Foods Corp., 842 F.Supp. 44, 48 (D.Conn.1993), aff'd 14 F.3d 591 (2d Cir.1993); Ed Graham Prods., Inc. v. Nat’l Broad. Co., 75 Misc.2d 334, 347 N.Y.S.2d 766, 768 (N.Y.Sup.Ct.1973). Fisher-Price argues that plaintiffs’ Reel Heroes concept is sufficiently dissimilar from the allegedly infringing products so as to justify summary judgment on the claim of misappropriation of plaintiffs’ Reel Heroes concept. Fisher-Price does not appear to rebut the evidence that it had access to plaintiffs’ concept. Plaintiffs contend that the definition of the Reel Heroes concept should not be limited to just the language included in the 1998 concept submission form (Lane Decl. Ex. 24) and the Option Agreement (Lane Decl. Ex. 25, Ex. A) because “(1) concepts submitted by outside inventors are typically broadly construed [notwithstanding] the limited definition provided on written submission forms; (2) the performance of the concept by Fisher-Price could be achieved in many different ways ...; and (3) the concept may ultimately be changed because the toy company has expended substantial resources to refíne and embellish the concept into a ‘finished licensed product.’ ” PI. Mem. of Law at 23. Defendant argues, however, that plaintiffs must be limited to the definition provided in the Option Agreement because: (1) the option agreement, including the concept definition, is a “formal contract” to which plaintiffs are bound, Def. Mem. of Law at 28 & n. 74; (2) the purpose of the Option Agreement was to provide “public notice” of plaintiffs’ idea, id. at 29 & n. 75; and (3) plaintiffs’ use of alleged custom and practice to argue that the concept definition in the Option Agreement is not binding is improper because custom and practice “cannot override specific terms agreed to by the parties,” Def. Reply Mem. of Law at 21. The plaintiffs’ articulation of their Reel Heroes concept in their three submissions, as set out in their interrogatory responses, will be used. This definition is consistent with the Reel Heroes concept presented to Fisher-Price in each of plaintiffs’ submissions, and considered in the context of their presentation to defendant, and therefore Fisher-Price’s argument that it did not have proper notice, and thus cannot be found to have misappropriated that concept, will not bar this claim. Furthermore, the Option Agreement reflected only plaintiffs’ first submission and thus the Agreement’s definition was necessarily limited to that submission only and does not reflect the additional iterations of plaintiffs’ concept. Plaintiffs contend that Fisher-Price used their Reel Heroes concept in four different lines or sub-lines of action figures, as well as in playsets, vehicles, and other accessories (including games), and used them Filmore Schotz concept in its Telly Photo figure. The Court will address the issue of “use” with respect to each of these products. Voice Tech Video Mission Figures (‘Video Mission”) The Video Mission figures are Rescue Heroes figures with backpacks that contain structures that look like television or computer screens, which, through the use of a lenticular lens, display moving images of the mission of the particular figure. See SAC Ex. L; Berkheiser Decl. at ¶ 20; Reiling Decl. ¶ 60. For example, the firefighter figure, Billy Blazes, has a backpack that displays a moving image of a building on fire with sound accompaniment of fire cracMing. See Berkheiser Decl. Ex. F. The effect of the Video Mission figures could be found consistent with plaintiffs’ concept of permitting the child to feel as though he or she is viewing the obstacle or mission that the particular figure is viewing or embarking on. The packaging for the Video Mission figures makes plain these similarities. See Reiling Deck Ex. CC (packaging for the Video Mission figures, stating “Now! See my mission on my video backpack! Now Rescue Heroes figures come to life with voices, sound effect, and video images! ... Kids can hear about the mission and see where it will be by pressing the buttons on the Rescue Heroes backpacks.”) (emphasis added). These backpacks with lenticular lenses can be seen as similar to the image-displaying device envisioned in plaintiffs’ submissions. Indeed, Fisher-Price Vice President Paul Snyder testified that there were similarities between plaintiffs’ concept and the Video Mission line sufficient to justify a recommendation that plaintiffs were entitled to royalties. See Dize Deck Ex. B, at 135-36, 139-40. Thus, genuine issues of material fact exist as to whether Fisher-Price used plaintiffs’ concept in the Video Mission line of figures. Voice Tech Mission Command Figures (“Mission Command”) The Mission Command figures are Rescue Heroes which are sold with a “mission card” displaying an image of a scene of one of six emergency scenarios in the Rescue Heroes storyline — fire, earthquake, flood, avalanche, volcanic eruption, and tornado. For example, the police officer Jake Justice is sold with a card depicting a tornado, the firefighter Billy Blazes is sold with a card showing a flame encompassing a burning building, and the construction worker Jack Hammer comes with a card showing a road cracking from an earthquake. Insertion of a card into a figure’s backpack will trigger a voice component related to the image on that particular card (“flood emergency,” “tornado warning”). SAC Ex. U; Reiling Deck ¶ 60; Berkheiser Deck ¶ 15 & Ex. A. Thus, the image on the card visually cues the child as to the emergency scene, confirmed by the audio triggered by use of that particular card. ‘ Berkheiser Deck ¶ 16. While each figure is sold with one card depicting one crisis scene, the cards are interchangeable among the Mission Command figures and trigger the same audio about the crisis scene depicted on the card, regardless of which figure the card is inserted in, allowing the figures to embark on and “talk” about joint missions by transferring a card from one figure to another. Id. Thus, a jury could reasonably conclude that the Mission Command figures use plaintiffs’ Reel Heroes concept by utilizing a viewer device on a figure’s backpack to visually cue the child’s role playing by depicting the mission of the character and by making the child feel as though he or she is viewing the crisis scene that the figure is viewing. These Mission Command figures can embark on various adventures or crises (e.g., flood, fire, tornado) through use of the interchangeable card mechanism. Whether these thematic and structural similarities between plaintiffs’ concept and the Mission Command figures prove “use” requires trial determination but are sufficient to distinguish this case from cases in which the theme underlying a plaintiffs’ concept and the theme embodied in defendant’s use are so distinct that no reasonable jury could conclude that the defendant used plaintiffs concept. Summary judgment on this basis is denied. Voice Tech Mission Select Figures (“Mission Select”) A further iteration of the theme of the Mission Command line is the Mission Select figures, which are action figures with a dial on each figure’s backpack that allows a child to select among the six emergency scenarios in the Rescue Heroes storyline (fire, earthquake, flood, avalanche, volcanic eruption, and tornado). See SAC Ex. R; Berkheiser Decl. ¶21. Each figure— whether Gil Gripper the scuba diver or Matt Medic the paramedic — has a backpack with a dial displaying these six images. See e.g., Berkheiser Decl. Ex. H (Gil Gripper). In addition to visually displaying scenes of the various missions on which these figures embark, the settings also trigger the voice component of the toys. The Mission Select line added the feature that the figures responding to the same crisis “talk” to each other without requiring moving a picture card from one figure to another, as with the Mission Command figures. See Berkheiser Decl. ¶ 21. As with the Mission Command figures; the similarities between the Mission Select figures and plaintiffs’ Reel Heroes concept, specifically, the use of a'framed “screen” device on the figures’ backpacks which displays a visual cue depicting scenes of the characters’ six possible missions to engage a child’s role playing, are such as to preclude summary judgment disposition. Optic Force Rescue Heroes The Optic Force Rescue Heroes are a sub-line of basic action figures and thus have no sound or speech capabilities. Berkheiser Decl. ¶ 25. The figures (including Telly Photo, Maureen Biologist, Matt Medic, and Rock Miner) have hand-held optical devices (except for Jake Justice, who has a non-hand-held telescope) attached to the backpack through which the child can view real images. See Reil-ing Decl. ¶ 60; Berkheiser Decl. ¶¶ 25-28. Thus, Telly Photo has a camera with an optical lens designed so the child can look through and see what Telly Photo is filming. Berkheiser Decl. Ex. N. While plaintiffs’ briefing does not appear to claim that the Optic Force figures use plaintiffs’ Reel Heroes concept, their complaint does. See SAC ¶ 37. The Optic Force figures, however, have not been shown to constitute a use of the Reel Heroes concept because they do not include a visual depiction of any sort to cue play, on a backpack or elsewhere, and their means of enhancing play value is in real-time, by what the child actually sees through the optical device, as opposed to being cued by an artificial visual depiction. The Telly Photo- figure, however, could be found by a jury to constitute a use of plaintiffs’ Filmore Schotz concept. The Filmore Schotz concept was for a cameraman action figure holding a TV camera with a window on top, through which a child could look and see out of the camera lens, giving the child the impression that he or she was viewing what the cameraman was filming. See Agreement Def. L.R. 56(a) Stmt, at ¶ 41. Accordingly, Telly Photo appears sufficiently similar to plaintiffs’ Filmore Schotz, in function and appearance, that the issue of whether Fisher-Price used the Filmore Schotz concept in producing their Optic Force Telly Photo figure must be decided at trial on a full record. Line Extensions Plaintiffs also claim reasonable royalties for line extensions, including playsets, vehicles, accessories, games, videos, DVDs, related to the accused action figures. As discussed infra, the basis for this claim is the purported industry custom and practice of compensating inventors for such line extensions related to plaintiffs’ submitted concepts. Therefore, to the extent plaintiffs are entitled to royalties on these types of products, they are only entitled to line extensions of those products which use plaintiffs’ concepts. Genuine issues of material fact as to Fisher-Price’s use of plaintiffs’ concepts exist as to the Video Mission, Mission Command, and Mission Select lines of figures and the Telly Photo Optic Force figure and thus only the claims for royalties based on line extensions of these products survive summary judgment. Summary Genuine issues of material fact exist regarding Fisher-Price’s alleged use of plaintiffs’ concepts in the Video Mission, Mission Command, and Mission Select lines of figures, the Telly Photo Optic Force figure, and line extensions and accessories related to these figures. Defendant’s motion for summary judgment on plaintiffs’ misappropriation claim is therefore granted in part (as to all non-Telly Photo Optic Force figures) a