Legal Geek No. 91: Cards Against Humanity sued for Kickstarter Takedown

Welcome back to Legal Geek. This week, we review another dispute over a Kickstarter takedown, but this time with a twist. This takedown led to a lawsuit against Cards Against Humanity, a favorite in the tabletop gaming and casual gaming community.

https://archive.org/details/LegalGeekEp91

Only two months ago we covered CAH suing counterfeiters, but this week, the tables turn with a lawsuit against CAH. Another game developer called SCS Direct launched a Kickstarter in early 2016 for a party card game called Humanity Hates Trump. The project quickly earned nearly $10,000, thanks to the hot political topic and the compatibility with CAH and its clones. However, the project was taken down when Kickstarter and SCS received a cease and desist letter from CAH.

The Complaint filed against CAH sets forth what happened according to SCS. CAH attorneys first contacted SCS to object to the Humanity Hates Trump box having a "Cards Against Everybody" tagline, and also for using the same Helvetica typeface on the cards. SCS changed those elements in an effort to avoid confusion between the games. But then CAH attorneys demanded that SCS not use black and white cards, and SCS refused to change this aspect. That led to the cease and desist letter which pulled the Kickstarter project down.

CAH claims that it owns trademark and/or trade dress protection in the use of black and white on "fill in the blank" card games, and that there would be consumer confusion that SCS's game comes from the makers of CAH. Obviously there cannot be any patent infringement, as CAH has no patent and they lifted their own game mechanics from Apples to Apples. SCS has sued CAH to get an injunction against further claims of infringement and to sue for business loss damages caused by the Kickstarter takedown. It's a classic case of threaten suit, and get sued yourself in a Declaratory Judgment action.

SCS notes in the Complaint that CAH owns no trademark office registrations on these features of the game, and also that CAH has allowed plenty of other competitors in the marketplace to exist with black and white cards. These include other card games like Crabs Adjust Humidity, Cats Abiding Horribly, Guards Against Insanity, Black Card Revoked, and Superfight, among others, some of which are also CAH knockoffs. In view of this dilution in the market and the failure to police the alleged trade dress before now, SCS appears to make a strong case that this claim of trade dress coverage of black and white cards is baseless.

It's possible that CAH would still try to argue a trademark claim based on use of the word Humanity in the title as well. That is not rebutted by the SCS complaint, and it may be an easier case to win for CAH even with just one word of overlap in the game titles. Indeed, that fact may kill SCS's chances to get an injunction for so-called "baseless claims" made by CAH.  CAH may not have a winning claim, but that doesn't mean the claims are baseless.

As a sidenote, the fact that CAH is offered under Creative Commons and Open Source licenses for personal printing is not decisive in a case like this. Those licenses do not grant other companies the right to steal other potential IP for commercial exploitation, so beware this trap with Creative Commons and the like. Even though Humanity Hates Trump has packaging that looks more like The Contender than CAH, name and style choices can still be problematic inside the packaging.

It's unclear if CAH has responded to the lawsuit yet.

Ironically, CAH came out with their own Trump and Hillary themed expansion packs later in 2016 to raise money to support their chosen candidate, and those raised over $530,000. Perhaps just drowning SCS with competition and their own strong fan base would've been a better option than fighting over a $10,000 Kickstarter campaign.

The Bottom Line is, enforcing your IP rights is important especially in trademark law, but companies like CAH have to be careful, as such enforcement can lead to these kinds of counter-lawsuits. Don't just send cease and desist or takedown letters without knowing the risks and planning for them.

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 90: How the Dr. Seuss/Star Trek mashup was Killed

Welcome back to Legal Geek. This week, we review a Kickstarter mashup book project involving Star Trek and Dr. Seuss, and whether it properly died on the Kickstarter vine thanks to intellectual property infringement allegations.

https://archive.org/details/LegalGeekEp90

A team of comics and science fiction writers teamed up under the company ComicMix LLC to launch a book project called "Oh The Places You'll Boldly Go," a book about Trekkie characters using Seuss-style rhymes and drawings. The Kickstarter campaign dropped sample rhymes like:

"You can get out of trouble, and that's knotty, because in a pinch you'll be beamed out by Scotty."

The book was in the process of raising nearly $30,000 on Kickstarter in the month of September, and predictably, that raised the hackles of one of the intellectual property owners being parodied. This time, it was the estate of Dr. Seuss, known as Dr. Seuss Enterprises, which objected to this book as a slavish copying of copyrighted works of the author and also as trademark infringement based on a likelihood of confusion with one of Seuss's best selling books, "Oh the Places You'll Go."

Paramount and CBS have not joined the case on behalf of Star Trek's intellectual property. As you'll recall, they are still in their own legal battle we've covered here with a crowdfunded fan film called Axanar.

The lawsuit filed in California did not slip through unnoticed, and powerful lobbying organizations like Popehat called for an attorney in the area to represent the creators of the book pro bono, AKA for free, to defend what many believe to be clear fair use under copyright law.

Fair use as a copyright infringement defense is a four factor balancing test, as we've covered before. Here, there are arguments cutting both ways on some of the factors. Seuss Enterprises believes that this work would undercut a part of the market for their own original works, while ComicMix does not see any harm to Seuss's marketplace. The purpose and character of the use is believed by Seuss Enterprises to be commercial and therefore disfavored, while ComicMix looks at this as a transformative parody work typically protected by fair use. As to the amount or substantiality of the portion of Seuss's work taken, Seuss Enterprises shows some highly similar drawing panels in the complaint, but ComicMix believes it has only used an oft-parodied style rather than lifting any particular story arcs from Seuss or a pre-existing Star Trek episode.

Being a self-proclaimed parody likely balances this test towards fair use instead of infringement, but the facts look close enough to make it an open question whether the fair use defense is available. What may be more damaging is the trademark claim, considering the identical goods of a book, and the highly similar names but for one added word. "Oh The Places You'll Go" has sold well as a graduation present and the like for many decades, and it may indeed be confusing to consumers whether this Trek parody comes from Seuss Enterprises or licensed by such.

The Bottom Line is, while it's admirable to see Popehat and other foundations try to help what looks like an awesome project from a fair use copyright perspective, there may be too many mistakes made here to save this Kickstarter project. Once again, merely approaching the parties for an inexpensive license could have potentially avoided a lot of legal bills, project delay, and frustration.

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy