Legal Geek No. 14: Diving Into the Hex vs. Magic Litigation Battle

Welcome back to Legal Geek. This week, the subject is litigation strategy and why Wizards of the Coast is suing Cryptozoic on a number of different intellectual property grounds.

https://archive.org/details/LegalGeekEp14

As discussed by Scott and Tom during last week's Current Geek, it was publicly announced last week that Wizards was suing Cryptozoic for infringement of IP relative to the iconic trading card game Magic the Gathering. In short, Wizards believes that Cryptozoic's new video game TCG called Hex is an illegitimate copy of Magic that should be stopped.

This interesting case between two gaming industry titans could be ground-breaking in a field close to our nerdy hearts.  As a result, this segment will look at some important aspects we can learn from this litigation over the next couple weeks.

This week, let's focus on the threshold question many are asking: why is Wizards is suing Cryptozoic on so many different grounds?

http://www.scribd.com/doc/224144304/Wizards-of-the-Coast-v-Cryptozoic-Entertainment-et-al
Comparison Photos from Complaint in W.D. Washington District Court filed by WOTC.

Wizards has three distinctive claims in the Complaint against Crptozoic, specifically patent, copyright, and trade dress infringement. Each of these three types of intellectual property provides a different scope of protection and each has a different test or burden of proof that Wizards must meet to prove that Hex is infringing. To put it most simply, Wizards is taking every bite at the apple it can because winning on any of these grounds will likely be fatal to Cryptozoic's game.

In addition, IP rights do not last forever. For example, the patent that Wizards is suing over is set to expire in June 2014. At long last, TCG designers will have "tapping" a card in the public domain for use in future designs. Thus, while the patent may have the best chance at obtaining profits and damages from Cryptozoic, the rights of Wizards to stop Hex from future sales based on patent rights will be moot in just over a month.

The copyright and trade dress actions are not based on soon-to-expire IP, so these items could lead to a long-term shutdown or redesign of the Hex game. Also, the likelihood of confusion test used to determine trade dress infringement is drastically different than construing and applying patent claims or determining the protectable authorial expressions covered by copyright. By making Cryptozoic prove a lack of infringement under each of these various standards, Wizards is banking on Cryptozoic not being able to rebut all of the different tests and arguments.

Bottom Line: The scorched earth approach of litigators is nothing new, and Wizards is making Cryptozoic jump through the most hoops possible to avoid infringement.  Even if some of the claims are more shaky than others, it is worthwhile for Wizards to fire every bullet it has in the litigation gun.

Next week, we will look at the merits of some of these claims and predict how this case might come out.
-----------
 
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy or in the comments below