According to reports, Judge Craig Karlan was said to have told Activision lawyers that, “I can’t say there’s a likelihood of success here,” concerning the attempt to stop the release of Double Fine’s Brutal Legend title.

Activision claims that it still owns the rights to the title, which it dropped after its merger with Vivendi Games. Double Fine is planning to release the title with publisher, Electronic Arts, through its EA Partners program after Double Fine claimed that Activision relinquished its rights to the title; based on the positive reviews that the title has been getting Activision now wants to block its release of Brutal Legend in order to protect the latest release in the Guitar Hero franchise, which is slated for release in the same time frame.

From what sources are telling us, the fact that Activision has been told that it has little chance to prevail will not affect the Judge’s plan to hear the arguments and deliver a final ruling on August 6th. From what we hear, the title is basically complete and is set to be delivered to EA for publication on August 8th.

Double Fine has filed a countersuit against Activision claiming that the attempt to block the release of Brutal Legend is just an effort to protect the release of the latest Guitar Hero product, as well as an effort to cash in on a title that is now expected to do pretty well despite the fact that Activision abandoned it.

Our take is that Activision could not afford to keep all of the titles that it acquired in the Vivendi merger, and that it had to let some titles that it thought had the least potential go. It seems, however, that Brutal Legend is set to repeat the same success that Ghostbusters had, which is another title that Activision dropped after the Vivendi merger.

The bottom line is now positive previews are coming in for Brutal Legend, and Activision thinks that many gamers will only buy one music-themed game from now till the end of the year, and that Brutal Legend will cut into the company’s sales of the next Guitar Hero. Whoever at Activision bet against Tim Shafer at Double Fine not having another hit on his hands with Brutal Legend is likely kicking themselves hard.