Did Cards Against Humanity unfairly and illegally kick a game developer off Kickstarter?
Earlier this year, a game developer named SCS Direct, Inc. launched a Kickstarter campaign for Humanity Hates Trump (“HHT”). Cards Against Humanity (“CAH”) then had HHT’s campaign removed entirely from Kickstarter allegedly because CAH claimed ownership to the aesthetics of black and white cards for fill-in-the-blank games. HHT has now sued CAH for bullying it off of Kickstarter with allegedly frivolous IP complaints.
The HHT game plays nearly identically to CAH. However, that is of course not the issue here since CAH’s gameplay mechanics are unoriginal and lifted directly from Apples to Apples. At launch, HHT bore some additional similarities to CAH:
- it used black and white cards;
- the font used was originally Helvetica Neue, the same as CAH’s font; and
- HHT originally bore the tagline “Cards Against Everybody”.
Prodding from CAH’s attorneys led HHT to change the font and remove the tagline, but HHT drew the line at the complaint about its black and white cards.
Here is a screenshot taken from the Humanity Hates Trump game’s website of its own game:
They do indeed look a lot like CAH cards, but can CAH really protect the idea of black and white cards?
CAH’s legal theory here would presumably be that when consumers see black and white cards for this genre of fill-in-the-blank party game, they associate it solely with CAH. CAH would also need to show that there is a likelihood that consumers would be confused into thinking that HHT is created by, affiliated with, or sponsored by, CAH. Importantly, CAH’s argument would be strongly supported by the fact the HHT shares a dominant term in the game’s name that is not common to tabletop games generally: “HUMANITY”.
HHT’s crowdfunding efforts exceeded their funding goal, but that success was short lived. Kickstarter suspended its campaign after a cease and desist letter from CAH that allegedly relied on the similarity of the black and white cards (though it is important to note that we don’t know the specific content of that cease and desist letter).
Now, HHT’s Kickstarter campaign looks only like this:
Soon after HHT’s Kickstarter page was removed, HHT turned the tables on CAH and filed a lawsuit against CAH in Connecticut federal court. The complaint can be read here.
Humanity Hates Trump’s legal claims
Fundamentally, HHT asserts that CAH had no basis for making its intellectual property complaint to Kickstarter. CAH allegedly has no registered or protectable trademark or trade dress over the look of black and white cards. HHT points to about nineteen other card games, some of which are obvious parodies of CAH, that feature the same design aesthetic (however, I will point out that none of them use the term “humanity”).
Additionally, HHT notes that the packaging of the two games is very different. Here is HHT’s packaging:
In its complaint, HHT is seeking a declaratory judgment from the court that it is not infringing on CAH’s intellectual property and for damages for “Tortious Interference with Business Expectancy” and for a violation of Connecticut’s “Unfair Business Practices” law that stems from CAH’s allegedly baseless intellectual property complaints that got HHT removed from Kickstarter.
CAH has not yet answered the claims and it is unclear if it has yet been served with the complaint.
This case demonstrates a number of important intellectual property issues in the games industry:
- The dangers of using materials with Creative Commons and Open Source licenses. Just because something like CAH is Creative Commons or open source does not mean that you can commercially exploit it with no limitations.
- The need to consistently protect your IP. If CAH had consistently enforced its design aesthetic trade dress against every copycat game that used black and white cards, then it would have a better argument that the color scheme represents its trade dress. It will have a harder time making that argument in court now that it has presumably overlooked over a dozen other competitors and copycats using the exact same design aesthetic.
- The potential for IP overreaching to backfire. Be careful about how you send cease and desist letters so as not to open yourself up to a lawsuit or to bad publicity.
So, what do you think?
Should CAH own the concept of black and white cards for fill-in-the-blank party games that also use the word “Humanity” in their title? Or, did it go too far when it had HHT removed from Kickstarter, permanently damaging the indie developer’s bottom line? Does CAH lose some of its moral high ground when its entire rules set is lifted from Apples to Apples?
My take is that HHT went a little too far when it used both the term “humanity” and the general aesthetics of the CAH cards. Perhaps it should have chosen one or the other.
For assistance on these and other game development legal issues, contact The Video Game Lawyers for a consultation: www.thevideogamelawyers.com.
Kyle RothDecember 13, 2016 at 6:41 pm
I agree with CAH not purely because of the black and white card colors, but if someone looked at both boxes of the game and didn’t know that they were made by different companies, I think they’d struggle to find any real differences.
Benson GreenDecember 15, 2016 at 9:22 am
And yet CAH failed to enforce against “Carbs of the Huge Manatee,” and “Guards Against Insanity,” and “Cats Abiding Horribly,” among others, all with packaging arguably more similar to CAH than “Humanity Against Trump.”
If it comes to a serious dispute, this will present a significant problem for CAH.
Given the relative ubiquity of the CAH aesthetic, and its failure to enforce, one wonders how quickly a mark can be genericized.
At the end of the day, the longer this drags out, the worse it is for CAH and its brand.
Benson GreenDecember 15, 2016 at 9:29 am
Also, with respect to likelihood of confusion, the “Humanity Hates Trump” logo is prominently displayed on the box, and on every card.
Additionally, the box specifically sates that the game “works with Cards Against Humanity and other similar party games,” and clearly disclaims affiliation with Cards Against Humanity.
As McArthur points out, the product name incorporates “Humanity,” which CAH can point to as a means to distinguish this product from others against which it has failed to enforce. That said, I personally think this is a little thin, especially when CAH is more prominently focused on the font + color combination.
Benson GreenDecember 15, 2016 at 8:46 am
I think CAH has a legitimate complaint, but one that’s undermined by its failure to enforce.
More importantly, this is a bad move for CAH.
You’ve got to decide what’s more important, the value of your brand as an agglomeration intellectual property rights, or its value in customer goodwill.
This selective enforcement is very, very ‘off brand’ for CAH. It undermines the integrity of its brand, and has far more potential for downside harm than upside gain.
Consumers give CAH a wink and a nod, knowing that they shamelessly appropriated the successful game mechanics of Apples to Apples. CAH has also built a brand based on irreverence and a decidedly anti-establishment mystique.
Attacking the maker of a card game that shamelessly appropriates elements of CAH, especially when that company is utilizing the very same crowdfunding platform that allowed CAH to get its start, looks petty, hypocritical, and ungrateful.
Someone should have advised CAH against sending that C&D.
Benson GreenDecember 15, 2016 at 1:00 pm
It’s also important to note that CAH offered the game under a creative commons license. This is probably inapposite to the allegations of infringement, but it goes to the company’s brand.
CAH is anti-establishment. They crowdsourced the game before it was cool, they offered it via creative commons, they reject consumerist trends like Black Friday, they are irreverent and don’t ‘play by the rules’ of polite society. Turning a blind eye towards products like Crabs Adjust Humidity is consistent with that brand.
Killing a successful Kickstarter campaign with a shitty complaint to the platform admins is basically the antithesis of that brand.
Crying, ‘you can’t do that’, ‘it’s not fair’, ‘it’s against the law’ goes against pretty much everything the Cards Against Humanity brand stands for.
It’s the kind of thing big, shitty companies do. It’s not the kind of thing scrappy little indie upstarts do.
It signals that Cards Against Humanity has gone from cool indie company to ‘The Man’.
Is that the kind of message CAH wants to send?
Lynn FredricksDecember 15, 2016 at 4:58 pm
Very interesting, but it seems off to me. Kickstarter removed the campaign, not CAH owner. Ultimately, it was Kickstarter’s decision. Id guess Kickstarter can remove a campaign for any reason. It seems to me to be without merit.
My first thought when hearing of “Trump Against Everyone” is that its a companion product to CAH. It does not come across to me as a (legal) parody.
There are a lot of Kickstarters that make egregious use of other company’s trademarks and copyrights, claiming something is “in the spirit of….” or “for fans of…..” or something similar in their short descriptions.