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Made in gb
[DCM]
Et In Arcadia Ego





Canterbury

http://company.wizards.com/content/wizards-coast-files-complaint-against-cryptozoic-entertainment-and-hex-entertainment



Wizards of the Coast Files Complaint Against Cryptozoic Entertainment and Hex Entertainment

for Copyright, Patent and Trade Dress Infringement



May 14, 2014 (Renton, WA) – Today Wizards of the Coast LLC, a subsidiary of Hasbro, Inc. (NASDAQ: HAS), filed a lawsuit in the United States District Court for the Western District of Washington against Cryptozoic Entertainment, LLC and its alter ego, Hex Entertainment, LLC (collectively, “Cryptozoic”), for willful infringement of intellectual property rights.

Edit: Here's the actual complaint. --Janthkin



Cryptozoic develops and publishes the digital trading card game, Hex: Shards of Fate, a clone of the world famous tabletop collectable trading card game, Magic: The Gathering®, and its digital expressions, Magic Online® and the Magic: The Gathering – Duels of the Planeswalkers® franchise.



“Hasbro and Wizards of the Coast vigorously protect our intellectual property. This infringement suit against Cryptozoic demonstrates that while we appreciate a robust and thriving trading card game industry, we will not permit the misappropriation of our intellectual property” said Barbara Finigan, Senior Vice President and General Counsel of Hasbro. “We attempted to resolve this issue, but Cryptozoic was unwilling to settle the matter.”



The suit includes claims for copyright, patent and trade dress infringement.



This message was edited 1 time. Last update was at 2014/05/19 18:58:35


The poor man really has a stake in the country. The rich man hasn't; he can go away to New Guinea in a yacht. The poor have sometimes objected to being governed badly; the rich have always objected to being governed at all
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Longtime Dakkanaut




Nottingham, UK

Interesting, I thought you couldn't patent game mechanics?

 
   
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Krazed Killa Kan






Newport, S Wales

winterdyne wrote:
Interesting, I thought you couldn't patent game mechanics?


If UPS can trademark the colour brown
http://www.ups.com/media/en/trademarks.pdf
http://en.wikipedia.org/wiki/Brown#Brown_in_culture

And apple can patent this
http://www.forbes.com/sites/markgibbs/2012/07/27/apples-ridiculous-patent/

Then I'm quite sure WotC can patent/trademark the core rules of their game

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My P&M Log: http://www.dakkadakka.com/dakkaforum/posts/list/433120.page
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And that is why you hear people yelling FOR THE EMPEROR rather than FOR LOGICAL AND QUANTIFIABLE BASED DECISIONS FOR THE BETTERMENT OF THE MAJORITY!


Phototoxin wrote:Kids go in , they waste tonnes of money on marnus calgar and his landraider, the slaneshi-like GW revel at this lust and short term profit margin pleasure. Meanwhile father time and cunning lord tzeentch whisper 'our games are better AND cheaper' and then players leave for mantic and warmahordes.

daveNYC wrote:The Craftworld guys, who are such stick-in-the-muds that they manage to make the Ultramarines look like an Ibiza nightclub that spiked its Red Bull with LSD.
 
   
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Somewhere in south-central England.

WotC managed to get a patent on the "Tap" mechanism which basically consists of turning a card sideways to indicate that it is performing a game function.




Automatically Appended Next Post:
However the thing about some of these seemingly trivial patents is that while the US Patent Office probably should not have granted them in the first place, given that it has, they need to be challenged in court or they stand.

This message was edited 1 time. Last update was at 2014/05/15 11:45:17


I'm writing a load of fiction. My latest story starts here... This is the index of all the stories...

We're not very big on official rules. Rules lead to people looking for loopholes. What's here is about it. 
   
Made in us
Sslimey Sslyth




I haven't played Shards of Fate, so can't comment on the specifics of this case, but it'll depend on how close to the MtG mechanics are to the Shards of Fate mechanics.

I mean, if SoF consists of land cards that are played to generate resources, and those lands are marked as being used in order to play other cards, and those other cards are functionally equivalent to creatures, instants, sorceries, etc., then WotC might have a case. If SoF is functionally identical to MtG in design and game play, then maybe WotC is correct.

Has anyone played SoF? My internet access at work is somewhat limited, so I haven't been able to look up actual game play for that system.
   
Made in us
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Louisiana

Saldiven wrote:
I haven't played Shards of Fate, so can't comment on the specifics of this case, but it'll depend on how close to the MtG mechanics are to the Shards of Fate mechanics.

I mean, if SoF consists of land cards that are played to generate resources, and those lands are marked as being used in order to play other cards, and those other cards are functionally equivalent to creatures, instants, sorceries, etc., then WotC might have a case. If SoF is functionally identical to MtG in design and game play, then maybe WotC is correct.

Has anyone played SoF? My internet access at work is somewhat limited, so I haven't been able to look up actual game play for that system.


Not really. You are crossing the streams a bit. Krazy is correct that the MtG patent covers the "tap" mechanic and little else besides. It is a rather weak patent as an invention must be new, useful, and not obvious in light of the prior art; which in this case would consist of all card games that have ever existed, and beyond that.

The game mechanics are not subject to trademark protection per se, but similarity of the products would factor into an analysis of trademark infringement. But, and this is a big but, it depends on what marks are being asserted. If it is "Magic: the Gathering," for example, the accused product is sold under a rather different word mark, so while similarity of the products would be a factor, it is not dispositive of the similarity, or lack thereof, of the marks themselves.

Home Depot and Lowes are both hardware stores, right? And in many respects they operate in incredibly similar ways. That similarity doesn't much matter because the marks are very distinct. Trademark law does not say you can't sell the same product; it says you can't pass off your product as sold or endorsed by another source.

Patent law says that you cannot make, use, or sell the patented invention. But again, the invention itself must be a legitimate invention. Hasbro will have a very hard time asserting the tap patent, complicated by such a long record of non-enforcement. The same or similar mechanics are stables of CCG and LCG games today, and to date I am unaware of any assertions of or recognitions of the tap patent. There is consequently a potential equitable estoppel argument there.

Kirasu: Have we fallen so far that we are excited that GW is giving us the opportunity to spend 58$ for JUST the rules? Surprised it's not "Dataslate: Assault Phase"

AlexHolker: "The power loader is a forklift. The public doesn't complain about a forklift not having frontal armour protecting the crew compartment because the only enemy it is designed to face is the OHSA violation."

AlexHolker: "Allow me to put it this way: Paramount is Skynet, reboots are termination attempts, and your childhood is John Connor."
 
   
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But they're not just filing a patent complaint. The story states they're filing complaints on grounds of patent, copyright, and trade dress infringement.

I haven't played the SoF game, so can't tell whether there is any validity to WotC's complaint, but I would assume that WotC perceive the SoF game to be a virtual copy of MtG that is too similar in too many aspects to leave alone.
   
Made in us
The Hive Mind





The SoF game has 5 colors (Ruby, Sapphire, Blood, Diamond, Wild). MTG has 5 colors (Red, Blue, Black, White, Green). There's color based Resources in both.
Hex (the SoF game) has Constants, Troops, Artifacts, Resources and Quick Action.
MTG has Enchantments, Creatures, Artifacts, Lands, and Instants/Sorceries.
Hex uses Champions to describe the player, MTG uses Planeswalker.

From www.hextcg.com 's how to play:
"You’ll start the game with a hand of 7 cards, and you’ll get to draw one new card on each of your turns. Note that if you don’t like your opening hand, you can shuffle it back into your deck and redraw a new hand of one fewer cards, and this can be done any number of times (re-drawing one fewer card each time)."
Could be a literal copy/paste from how MTG does it.


Going through the How to Play it looks like literally the only difference is that you don't tap resources - but things work the same way.
The online play screenshots for Hex are *very* similar to MTGO.

My beautiful wife wrote:Trucks = Carnifex snack, Tanks = meals.
 
   
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I just did a little research, and the original complaint by WotC do in fact assert that SoF is just a copy of MtG under a different name.

The complaints lists similarities in the game including:

Objective
Starting life total
Same number of analogous card types
Same "mana" tap mechanic
Same turn sequence
Same creature/spell colors

The complaint states "Hex is a nearly identical game to Magic." The complaint sites examples of reviews by gaming publications that comment on the obvious similarities between the two games. It sites examples of game mechanics that are functionally identical to Magic rules under different names (Speed = Haste, Flight = Flying, Steadfast = Vigilance, Swifstrike = First Strike, Spellshield = Hexproof, etc.). The "tapping" mechanic is only one on a list of 25 items that WotC contend Cryptozoic has copied from MtG in creating SoF.

Here's a link to a site with the full complaint. Again, not having played SoF, I have no idea how appropriate the WotC complaint might be, but it's far more than a complaint about the tapping mechanic.

http://www.scribd.com/doc/224144304/Wizards-of-the-Coast-v-Cryptozoic-Entertainment-et-al
   
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Kilkrazy wrote:WotC managed to get a patent on the "Tap" mechanism which basically consists of turning a card sideways to indicate that it is performing a game function.




Automatically Appended Next Post:
However the thing about some of these seemingly trivial patents is that while the US Patent Office probably should not have granted them in the first place, given that it has, they need to be challenged in court or they stand.


Not quite accurate. WotC got a copyright for the use of the word "tap" to indicate a triggering of an in-game effect by physical turning a card from upright to on its side. There are numerous card games that use this exact same mechanic (triggering of an in-game effect by physical turning a card from upright to on its side), but are required by law to call it something different.
   
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NC

Additionally, both games share more than a passing similarity in cards themselves.

Both games have a one red/ruby mana cost instant/quickaction card that deals 3 damage to target creature/troop or player/champion.

Both games have a one green/wild mana instant/quickaction card that gives target creature/troop +3/+3.

Both games have a minimum deck size of 60 cards with a 15 card sideboard.

Both games only allow four copies of a single card in the deck aside from 'basic' resource cards.

Both games allow you to only play one land/resource per turn.

Both games have a concept of "summoning sickness" where creatures/troops can't attack the turn they come into play, but they can block.

---

It's understandable that game mechanics can't be copyrighted, but the similarities are so ridiculous that it's almost impossible to say this is anything but a blatant copy.
   
Made in us
Sslimey Sslyth




SoF also uses the same terminolgy for game items. In both games, the deck is called the Library. The discard pile is called the Graveyard. Cards are used to create "Mana" with which other cards are played.

Seriously, it's like Cryptozoic didn't even really try to be original.
   
Made in us
Myrmidon Officer





NC

Oh wow. Just looking at the wiki, the parallels are hilarious.

--

Both games you draw 7 cards to start. You may mulligan into a new hand by drawing one less card.

Both games have an imaginary five-colored collection of resources called the "mana pool" or "resource pool".

Both games only permit you to attack your opponent directly and not their creatures. All your creatures must be declated attacking simultaneously. Your opponent may then block with their creatures. Damage on creatures wear off at the end of turn. If anything this alone differentiated the WoWTCG from Magic tremendously.

Both games have a neutral-colored set of cards called "Artifacts". These have no color affinity and may be played using any color resource. All of these Artifacts come in permanent form and there are no neutral spells.

Both games have Artifact Creatures/Troops. These neutral troops are mechanical/robotic/golem-like in nature.

Both games have indicators that count up on cards called "counters".

Both games have a three-cost white/diamond card that exiles/voids another card on the playing field. When this card leaves, the card comes back.

Both games have keywords. Trample = Crush. Defender = Defensive. Flying = Flight. Indestructible = Invincible. Lifelink = Lifedrain. Bushido = Rage (with numbers coped, even). Haste = Speed. Hexproof = Spellshield. Vigilance = Steadfast. First Strike = Swiftstrike. The only 'new' keywords that Hex adds are "inspire" and "escalation" which are clunky and require rules text on the card to clarify. The wiki even blatantly states the parallels in abilities: http://hextcg.gamepedia.com/Flight

Both games give you more cards in 15-card booster packs containing 1 rare, 3 uncommons, and 11 commons. There is a chance of the rare being a mythic/legendary if you're lucky.

Both games have functionally exact copies of the MtG cards 'Genesis Wave' and 'Form of the Dragon' in both effect AND cost. Both these cards are rather complex and the similarities are nearly impossible to be coincidental.



---

This is the best stuff ever.

This message was edited 1 time. Last update was at 2014/05/15 17:38:44


 
   
Made in us
Dakka Veteran






Western Massachusetts

The game appears to be a reskinned version of Magic: The Gathering. Since that seems to be a thing that a lot of small game developers are doing these days, it will be really interesting to see what comes of this lawsuit.

   
Made in de
Longtime Dakkanaut




 Absolutionis wrote:
Oh wow. Just looking at the wiki, the parallels are hilarious.


The parallels shouldn't matter. If they have the same rules but use distinctly other wording and art then they shouldn't have a problem. To some degree one could describe it like throwing copyright/trademark/patent combo grenade at someone who also made a FPS game because you have the copyright to something (the art assets of the game), the trademark (you trademarked an unique name, and some distinct terminology), and some vague lawyer-speakified patent for whatever (anything really).

J. K. Rowling owns the copyright for the Harry Potter books, not to all possible interpretations if the idea of a boy wizard sometimes having a bad time growing up. Somebody might own the copyright to a cook book and the (exact) recipes inside as written down but they don't hold an universal right to restrain you from writing them down in your own words and creating a book with the same recipes and with your own food photography.

From what I have seen (not too much) it seems that they did the least amount of work that they could to bypass these problems successfully.
   
Made in us
Fixture of Dakka






San Jose, CA

Actually, WotC has a few game-related patents that may apply (see patft.uspto.gov, Quick Search, Assignee Name = Wizards of the Coast). If you're into patentese, you can read it here.

You can't copyright game mechanics; you CAN patent them, assuming the usual patentability criteria are met. And seeing that this case has already been through reissue, it's likely going to be much harder to invalidate.

More to the point, it's doubtful that it'll reach trial anyway. Patent litigation is ungodly expensive on both parties.

Mario wrote:
J. K. Rowling owns the copyright for the Harry Potter books, not to all possible interpretations if the idea of a boy wizard sometimes having a bad time growing up. Somebody might own the copyright to a cook book and the (exact) recipes inside as written down but they don't hold an universal right to restrain you from writing them down in your own words and creating a book with the same recipes and with your own food photography.
All of this is true...if we're only talking about copyright. Copyright is the protection of the expression of an idea - usually, the words and/or images used to convey your meaning to the viewer. Patent law is intended to protect the implementation of an invention. And yes, you could patent food recipes, too (though finding a truly novel recipe would likely take some interesting chemistry).

This message was edited 2 times. Last update was at 2014/05/15 22:22:33


Quis Custodiet Ipsos Custodes? 
   
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Dakka Veteran




Saldiven wrote:
I haven't played Shards of Fate, so can't comment on the specifics of this case, but it'll depend on how close to the MtG mechanics are to the Shards of Fate mechanics.

I mean, if SoF consists of land cards that are played to generate resources, and those lands are marked as being used in order to play other cards, and those other cards are functionally equivalent to creatures, instants, sorceries, etc., then WotC might have a case. If SoF is functionally identical to MtG in design and game play, then maybe WotC is correct.

Has anyone played SoF? My internet access at work is somewhat limited, so I haven't been able to look up actual game play for that system.


Only if Mac could never use a mouse and a click.
   
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Longtime Dakkanaut




Louisiana

It's easy to see why Hasbro is upset about a MtG clone. But being upset does not equal a reason to sue.

Systems, processes, and methods of operation are not subject to copyright protection. Patent protection only goes so far. Maybe it has been violated. Maybe not.

What I don't like to see is a complaint arguing that a game is pretty much exactly the same. So what? Make an allegation with a legal basis if you are bringing a lawsuit.

Similarity of product is relevant to only one of eight factors to consider in trademark infringement. And the reason why is REALLY important.

More than one company is allowed to sell the SAME product. Trademarks are about allowing the consumer to distinguish between those products.

So unless you have a patent with claims covering all of those game rules you are touting both games having in common, it shouldn't be the bulk of your argument.

'The products are very similar' is not a firm basis on which to make a trademark infringement case. Similarity starts to matter in the context of many other factors, such as similarity of the MARKS.

Again, it is easy to see why Hasbro is upset, but the various IP laws work the way that they do for very good reasons. As someone said earlier, would you like to have only ever seen one FPS computer game? How many FPS games are incredibly similar? How many WARGAMES are incredibly similar. Just think of that. Would you want one Wargame company to control the use of two 6-sided dice as a randomizer? Would you want one RPG company to monopolize any use of a Race/Class system?


Kirasu: Have we fallen so far that we are excited that GW is giving us the opportunity to spend 58$ for JUST the rules? Surprised it's not "Dataslate: Assault Phase"

AlexHolker: "The power loader is a forklift. The public doesn't complain about a forklift not having frontal armour protecting the crew compartment because the only enemy it is designed to face is the OHSA violation."

AlexHolker: "Allow me to put it this way: Paramount is Skynet, reboots are termination attempts, and your childhood is John Connor."
 
   
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Fixture of Dakka






San Jose, CA

You might want to read WotC's patent on their computer game. It's actually quite specific and narrow in the claims. At first glance, the only way to infringe it IS to make a clone.

I have no issues with WotC having and enforcing a patent on their mechanics for M:tG. At the time it launched, it really was pretty unique, and spawned essentially a new genre. And since patents are the most time-limited form of IP, everyone will be free to use those mechanics in the near future. But perhaps not quite yet.

Quis Custodiet Ipsos Custodes? 
   
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Longtime Dakkanaut




Louisiana

 Janthkin wrote:
You might want to read WotC's patent on their computer game. It's actually quite specific and narrow in the claims. At first glance, the only way to infringe it IS to make a clone.

I have no issues with WotC having and enforcing a patent on their mechanics for M:tG. At the time it launched, it really was pretty unique, and spawned essentially a new genre. And since patents are the most time-limited form of IP, everyone will be free to use those mechanics in the near future. But perhaps not quite yet.


I'll take a look at it Janth. I haven't read that one.

In any case, the broader point I was making was that one should not jump from game clone to some ill-defined notion of IP infringement.

I've always thought the tap patent was over broad and unnecessary. There's got to be prior art out there for changing the orientation of a playing card. That's all those claims are; changing the orientation of a playing card as a method of indication in a game.

Kirasu: Have we fallen so far that we are excited that GW is giving us the opportunity to spend 58$ for JUST the rules? Surprised it's not "Dataslate: Assault Phase"

AlexHolker: "The power loader is a forklift. The public doesn't complain about a forklift not having frontal armour protecting the crew compartment because the only enemy it is designed to face is the OHSA violation."

AlexHolker: "Allow me to put it this way: Paramount is Skynet, reboots are termination attempts, and your childhood is John Connor."
 
   
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On the Internet

 Absolutionis wrote:
Spoiler:
Additionally, both games share more than a passing similarity in cards themselves.

Both games have a one red/ruby mana cost instant/quickaction card that deals 3 damage to target creature/troop or player/champion.

Both games have a one green/wild mana instant/quickaction card that gives target creature/troop +3/+3.

Both games have a minimum deck size of 60 cards with a 15 card sideboard.

Both games only allow four copies of a single card in the deck aside from 'basic' resource cards.

Both games allow you to only play one land/resource per turn.

Both games have a concept of "summoning sickness" where creatures/troops can't attack the turn they come into play, but they can block.

---

It's understandable that game mechanics can't be copyrighted, but the similarities are so ridiculous that it's almost impossible to say this is anything but a blatant copy.

Mobile gaming sees this all the time and unless their infringing on something that WotC can actually protect (like trademarks, as in logos or art) there is nothing there for them to win with here.

EDIT: Retracted pending the whole "patent" thing: So yeah, I'm adding this to the list of reasons I don't want to see Hasbro buying GW, they're legal team does the same BS as GW apparently.

I still don't see much luck for WotC here. Games tended to have very little, to no protection from being copied.

This message was edited 1 time. Last update was at 2014/05/16 06:14:23


 
   
Made in us
Longtime Dakkanaut






winterdyne wrote:
Interesting, I thought you couldn't patent game mechanics?


This gets incredibly complex. Which is why I have my own IP attorney as needed, which is quite frankly incredibly rare. Because I hate paying $10.25 dollars a minute.

Generally speaking, game mechanics you can not. How you express those game mechanics you can.

Eh its just a big fish throwing its weight around. But they got the money and the fire power to do so.

Sounds familiar?

Added: Now patents are again another legal manner which I let the attorneys handle.

And people wondered why I'm into real estate. I like the Evils that I know.

This message was edited 1 time. Last update was at 2014/05/16 06:54:33


Adam's Motto: Paint, Create, Play, but above all, have fun. -and for something silly below-

"We are the Ultramodrines, And We Shall Fear No Trolls. bear this USR with pride".

Also, how does one apply to be a member of the Ultramodrines? Are harsh trials involved, ones that would test my faith as a wargamer and resolve as a geek?

You must recite every rule of Dakka Dakka. BACKWARDS.
 
   
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Somewhere in south-central England.

Presumably the WotC patents on their card game mechanics will run out after 20 years, which must be about now as the game was published in 1993 if I remember correctly.

I'm writing a load of fiction. My latest story starts here... This is the index of all the stories...

We're not very big on official rules. Rules lead to people looking for loopholes. What's here is about it. 
   
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Welwyn Garden City, Herts

 Kilkrazy wrote:
Presumably the WotC patents on their card game mechanics will run out after 20 years, which must be about now as the game was published in 1993 if I remember correctly.


http://www.google.co.uk/patents/US5662332

Filing Date 17th October 1995

According to wiki (which is where ALL my legal research is done )
http://en.wikipedia.org/wiki/Term_of_patent_in_the_United_States

It runs out 20 years after filing date, so 17th Oct 2015 unless there's other rules that my indepth research didn't turn up.

   
Made in us
Longtime Dakkanaut




Louisiana

richred_uk wrote:
 Kilkrazy wrote:
Presumably the WotC patents on their card game mechanics will run out after 20 years, which must be about now as the game was published in 1993 if I remember correctly.


http://www.google.co.uk/patents/US5662332

Filing Date 17th October 1995

According to wiki (which is where ALL my legal research is done )
http://en.wikipedia.org/wiki/Term_of_patent_in_the_United_States

It runs out 20 years after filing date, so 17th Oct 2015 unless there's other rules that my indepth research didn't turn up.


It actually depends on the priority date.

Kirasu: Have we fallen so far that we are excited that GW is giving us the opportunity to spend 58$ for JUST the rules? Surprised it's not "Dataslate: Assault Phase"

AlexHolker: "The power loader is a forklift. The public doesn't complain about a forklift not having frontal armour protecting the crew compartment because the only enemy it is designed to face is the OHSA violation."

AlexHolker: "Allow me to put it this way: Paramount is Skynet, reboots are termination attempts, and your childhood is John Connor."
 
   
Made in us
Sslimey Sslyth




To those calling WotC a "big fish throwing it's weight around," keep in mind that they've not done any such thing against the makers of, well, pretty much any of these other CCGs:

http://en.wikipedia.org/wiki/List_of_collectible_card_games

They've only gone after SoF since it's a virtual copy of MtG's own existing computer game.

Now here's a thing, and the IP people can let me know if this makes a difference. SoF, is not a true CCG in the sense of Magic, Shadowfist, MLP, etc. SoF doesn't actually produce cards. It's entirely an electronic game. As such, would its similarities to MtG's computer game (software) be an issue.

As in, could I make a game that is almost identical to Civilization, call it Settlers, and be fine? (And, I'm not talking about simple mechanics like in a FPS. More like making a game that follows the plot line of Halo exactly, has the exact same stats for each weapon and character and enemy as Halo, and uses the exact same interface as Halo?)
   
Made in us
Longtime Dakkanaut




Louisiana

Saldiven wrote:
To those calling WotC a "big fish throwing it's weight around," keep in mind that they've not done any such thing against the makers of, well, pretty much any of these other CCGs:

http://en.wikipedia.org/wiki/List_of_collectible_card_games

They've only gone after SoF since it's a virtual copy of MtG's own existing computer game.

Now here's a thing, and the IP people can let me know if this makes a difference. SoF, is not a true CCG in the sense of Magic, Shadowfist, MLP, etc. SoF doesn't actually produce cards. It's entirely an electronic game. As such, would its similarities to MtG's computer game (software) be an issue.

As in, could I make a game that is almost identical to Civilization, call it Settlers, and be fine? (And, I'm not talking about simple mechanics like in a FPS. More like making a game that follows the plot line of Halo exactly, has the exact same stats for each weapon and character and enemy as Halo, and uses the exact same interface as Halo?)


I think it is fair to say that Hasbro is upset and has a reason to be. I think it is also fair to say that Hasbro has not been throwing its weight around with respect to the MtG patents. I don't think anyone is calling Hasbro a troll or bully.

The manner in which Hasbro chooses to frame the complaint is potentially significant. I haven't read through the complaint in any detail yet, so bear that in mind. My point here is that being upset and having a legitimate complaint does not inherently justify a nuclear response. The fallout can be far reaching. Again, not having read the complaint in depth, the trade dress claims raise a red flag. I'd like to see the claims cleanly demarcated in the complaint, but my guess is that they are not. Hence you would have a troubling mix of legal theories. We saw the same in the GW v CHS case, and there copyright and trademark claims were wildly conflated to the point that a major US law firm has stepped in to take the appeal.

If you look at the Apple v Samsung litigation, even though Steve Jobs literally described a nuclear response, you don't see any trade dress claims in those cases. Of concern to me is the blanket premise that 'this is a copy of our product' backed up with three very different types of legal arguments. That is inherently problematic; problematic for the court, problematic for the fact finders, and problematic for the public.

Once you try to mix those very different statutes into a blender of pissed off you have the makings of not just a thermonuclear response, but a dirty bomb.

Kirasu: Have we fallen so far that we are excited that GW is giving us the opportunity to spend 58$ for JUST the rules? Surprised it's not "Dataslate: Assault Phase"

AlexHolker: "The power loader is a forklift. The public doesn't complain about a forklift not having frontal armour protecting the crew compartment because the only enemy it is designed to face is the OHSA violation."

AlexHolker: "Allow me to put it this way: Paramount is Skynet, reboots are termination attempts, and your childhood is John Connor."
 
   
Made in us
Sslimey Sslyth




I apologize if there are typos, but the form on the link I posted wouldn't let me copy-paste, so I typed it out in notepad to copy paste here.

This is the section in the complaint dealing with Trade Dress in its entirety:

45. Cryptozoic deliberately and intentionally copied the game play, rules, player
interaction with the game, layout and arrangement, visual presentation, sequence and flow,
scoring system, and Magic's overall look. By duplicating the "total image and overall
appearance of a product," Cryptozoic has copied Magic's particular trade dress, the copying of
which shows confusion among Wizard's customers.

46. The distinctive desin of the Magic cards is not essential to the use or purpose of
the game nor does the design affect the cost or quality of the cards; the design is merely an
ornamental arrangement of features, some of which are functional. For these reasons the
distinctive design of the Magic cards and the arrangement of features are protectable as trade
dress in either the paper or electronic versions of Magic.

47. Cryptozoic copied Magic in a manner that clearly infringes on Wizards' trade
dress and unless Cryptozoic is enjoined, it will continue to do so. At no time did Wizards authorize
Cryptozoic to reproduce, adapt, or distribute Magic.

48. The visual appearance of Magic has a unique look and feel comprised of
distinctive characteristics, including, but not limited to, the arrangement of the individual cards.
These characteristics of Magic have come to identify Magic and its source and thus serve as
protectable trade dress. Magic's trade dress is non-functional and is inherently distinctive or has
acquired distinction within the meaning of the Lanham Act.

49. Through their use of the misleading design and the look-and-feel of Hex, Cryptozoic
is knowingly and intentionally misrepresenting and falsely designating to the general public the
affiliation, connection, association, origin, source, endorsement, sponsorship and approval of
Hex, and intends to misrepresent and falsely designate to the general public the affiliation,
connection, association, origin, source, endorsement, sponsorship and approval of Hex by
Wizards, so as to create a likelihood of confusion by the public as to the affilation, connection,
association, origina, source, endorsement, sponsorship and approval of Hex.

50. Cryptozoic's conduct as been intentional and willful, and is calculated
specifically to trade off the goodwill that Wizards has developed in its successful Magic games,
making this an exceptional case under 15 U.S.C. P 1125(a)(1)(A).

51. The aforesaid acts of Cryptozoic constitute false designation of origin, false
endorsement, and unfair competition in violation of 15 U.S.C. P 1125(a)(1)(A).

52. Further, by its sales through the Kickstarter campaign, Cryptozoic has obtained in
excess of two million dollars, a sum that constitutes one of a number of loses of related
revenues Wixards could reasonably have expected to earn.

53. As a direct result of Cryptozoic's actions infringing Wizards' trade dress rights,
Wizards has sustained, and will continue to sustain, substantial injury, loss, and damages in an
amount exceeding $500,000.00 and as proven at trial. Wizards is entitled to a permanent injunction
restraining Cryptozoic, its officers, directors, agents, employees, representatives, and all persons
acting in concert, from engaging in further acts of trade dress infringement.
   
Made in us
Longtime Dakkanaut




Louisiana

Consider the LEGO v Mega Bloks litigation.

Mega Bloks copied Lego's patents after those patents expired, which is perfectly acceptable. LEGO attempted to extend the life of its toy brick monopoly by asserting first trademark and later trade dress claims against Mega Bloks. Those attempts failed and today we have a lively toy brick product market, of which Hasbro is happily benefiting.

Imagine if Mega Bloks had released its products prior to the expiration of LEGO's patents, and that LEGO sued Mega Bloks for patent infringement, trademark infringement, and trade dress infringement. We know that Mega Bloks used the LEGO patents, so presumably patent infringement would have been proven.

But in the context of the conflated patent infringement claims, LEGO would likely have also prevailed on the trademark and trade dress claims; claims that it should not have prevailed on and did not prevail on in litigation with Mega Bloks.

Had that been the case, that LEGO prevailed on trademark and trade dress claims due to conflation with patent infringement claims, not only would case law have potentially been sullied by crossovers between patent law and trademark law, but there could have been a manifest miscarriage of justice with respect to the trademark and trade dress claims. Additionally, LEGO's patent rights would have been artificially extended by trademark and trade dress monopolization that could then have been used to prevent other entrants into the toy brick market.

I can say from extensive experience in the behavior of fact finders that it is not unreasonable to speculate that LEGO would have prevailed on its trademark and trade dress claims in the hypothetical described above. The potential for success in those claims would have been greatly enhanced. The hypothetical described above therefore demonstrates the potential for harm, both to individuals and the public good, that can be caused by conflation of various different types of intellectual property laws.


This message was edited 5 times. Last update was at 2014/05/16 16:02:51


Kirasu: Have we fallen so far that we are excited that GW is giving us the opportunity to spend 58$ for JUST the rules? Surprised it's not "Dataslate: Assault Phase"

AlexHolker: "The power loader is a forklift. The public doesn't complain about a forklift not having frontal armour protecting the crew compartment because the only enemy it is designed to face is the OHSA violation."

AlexHolker: "Allow me to put it this way: Paramount is Skynet, reboots are termination attempts, and your childhood is John Connor."
 
   
Made in us
Sslimey Sslyth




After reading Wizards' trade dress complaint, do you think that it has any merit (just in your opinion. I know you're not a lawyer, but from reading all bazillion posts in the CHS thread, I respect your opinion)?
   
 
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