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
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