Trademarks Prevent Calamity? A Party Game’s Dispute is not so Black-and-White
The ever-popular, self-described “party game for horrible people” is cracking down on copycats.[1]
Released in 2011, Cards Against Humanity (“CAH”) is a party game where players complete fill-in-the-blank statements, using words or phrases – which are often humorous, lewd or politically incorrect – printed on a set of black-and-white cards.[2] The gameplay is influenced by Mad Libs,[3] as well as the 1999 party game Apples to Apples.[4]
If you’re a longtime player of CAH, you might recall a time when industrious consumers were printing out their own copies of the game for free. That was – and still is – possible because CAH is available under a “Creative Commons” license, which permits anyone to reproduce the game at no cost.[5] This also allows anyone to “remix” the game and create their own cards – with the caveat that users may not seek “commercial advantage or private monetary compensation” for their creations. While some designers have been able to work within these constraints,[6] this restriction has made it prohibitively expensive for others to continue hosting their expansions for free.[7]
Meanwhile, CAH’s popularity has inspired other game designers to get in on the action, for profit. A quick scan of the Internet reveals dozens of unofficial expansion decks for the game created and marketed by third party companies, with names often phonetically similar to CAH, including Crabs Adjust Humidity,[8] Cats Abiding Horribly,[9] Guards Against Insanity,[10] Carbs of the Huge Manatee,[11] and (somehow, also), Carps and Angsty Manatee.[12] Almost invariably, these decks have only gotten to market after complying with any design changes CAH requests[13] in order to avoid legal disputes. CAH has trademarked its name,[14] acronym,[15] tagline,[16] and elements[17] of their design. While it has not trademarked the now-signature style of their cards – black-and-white, with text in “Helvetica Neue” font – CAH has tried to protect its trade dress by working with game designers who would like to sell their expansions. The finished products are then sufficiently differentiated so as not to cause consumer confusion regarding their origin.
In addition, since CAH has numerous expansions of its own, CAH is particularly aggressive towards expansions that might cannibalize their sales. For example, distribution of a recent unofficial expansion called Trump Against Humanity[18] was halted due to ambiguous “legal reasons.”[19] Notably, photos of Trump Against Humanity[20] show that the product’s design would have had some remarkable aesthetic similarities to CAH, even incorporating the “fanned out squares” design that CAH has protected via trademark.[21] One might see how their use of the word “humanity” in their naming convention, the black box packaging, white Helvetica Neue font, and play on CAH’s tagline could be perceived as commercial exploitation of CAH’s familiar design. Additionally, it would seem no coincidence that CAH later decided to sell[22] its own expansion packs[23] themed around the 2016 presidential election.
The planned release of a similar product, Humanity Hates Trump,[24] was also briefly derailed. Like Trump Against Humanity, the Humanity Hates Trump deck consists of black-and-white cards, incorporates the word “humanity” into its naming convention, and is thematically based on the 2016 presidential election.[25] However, it is also different in a few notable ways. Its white cards use a slightly different font typeface.[26] The cards do not use the “fanned out squares” design. The box is red, white and blue, straying from the simple black-and-white packaging CAH uses. Finally, Humanity Hates Trump does not market itself as an “expansion” to CAH. While it mentions that the set “works with Cards Against Humanity . . . and similar games,”[27] Humanity Hates Trump is actually marketed as a “base game,” playable by itself or with its own corresponding expansion packs. This strategy has been taken by other games, including Skewered and Roasted,[28] Cads About Matrimony,[29] and another election-themed deck, 2016 Election Game.[30] While all are sold as standalone games, they are also touted as being “compatible” with CAH, and are printed on cards that are cut to the same size as CAH’s decks.
In March 2016, Humanity Hates Trump opened a Kickstarter campaign,[31] in an effort to raise funding and build consumer recognition prior to release. They hit a snag, however, when the campaign was removed following a complaint made by CAH directly to Kickstarter.[32] In April, the game manufacturer and distributor SCS Direct fought back in Connecticut district court, arguing in their complaint that CAH had “engaged in a campaign to thwart the production and sales of Humanity Hates Trump,” and alleging that CAH’s infringement claims were “baseless.”[33] SCS Direct maintains that they complied with most of CAH’s requested design changes, but refused when CAH asked they change the color of the cards, which remain black-and-white.[34] SCS Direct pointed out that lots of games use black-and-white cards and are unaffiliated with CAH, and furthermore, that CAH has no trademark or trade dress registrations with respect to that design element.[35]
Stephen McArthur, Founding Attorney of the McArthur Law Firm, a boutique firm serving clients in the digital, video game, and tabletop game industries,[36] offered the Fordham IPLJ Blog his take on what CAH’s next move should be. “If I were CAH, I would defend this lawsuit aggressively. I think Humanity Hates Trump went a little too far when it used both (1) the term “humanity” and (2) the general aesthetics of the CAH cards. I think Humanity Hates Trump was clearly trying to trade off of the success of CAH.” In a recent post, the McArthur Law Firm posited that CAH’s best defense would 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,” and that therefore Humanity Hates Trump was capitalizing on CAH’s aesthetic.[37] Additionally, CAH would also need to show “a likelihood that consumers would be confused into thinking that HHT is created by, affiliated with, or sponsored by, CAH.”[38] Finally, CAH is armed with the fact that “HHT shares a dominant term in the game’s name that is not common to tabletop games generally: ‘HUMANITY.’”[39]
Marc Misthal, partner at Gottlieb, Rackman & Reisman, P.C.,[40] remarked that “Claiming rights in colors can be very difficult, as shown by the Louboutin case.[41] In its lawsuit against CAH (which has not been served), Humanity Hates Trump alleges that there are many other card games that feature black and white cards, and that as a result consumers seeing black and white will not automatically associate them with CAH. As this is a case involving unregistered trade dress, CAH has the burden of proving that consumers seeing black and white cards associate those cards with CAH, and this would likely require a survey—the results of which are not guaranteed to be in CAH’s favor. While both sets of cards feature the word ‘humanity,’ the dominant aspects of the Humanity Hates Trump cards is TRUMP and the image of the pointing finger, which are likely to be the aspects of the cards which are recalled by consumers. CAH’s policing efforts seem to have been directed towards asking third party makers of expansion packs to make changes so that consumers do not think those expansion packs come from CAH, an objective which is consistent with the Lanham Act. But where the main similarity between the cards is their color, it will not be easy for CAH to prove its case.”
Humanity Hates Trump was ultimately released in May 2016. While their dispute with CAH remains unresolved, so do the public relations issues that can happen in situations like this, where the perceived “little guy” struggles to compete against a larger company and accuses them of being a bully in the marketplace. Conversely, the presence of so many third-party expansions using a similar, perhaps marginally differentiated design aesthetic arguably weakens CAH’s case for taking action to remove Humanity Hates Trump’s Kickstarter campaign.[42] If the market is filled with deck expansions produced by third-party game designers, at what point does the game become so ubiquitous that the “look” of the cards becomes irrelevant? Or, is it more accurately a combination of other factors that hew the overall look closer to that of CAH? It will be interesting to see how this dispute impacts CAH, their IP enforcement strategies, and the future for any new entrants to this already crowded market.
Footnotes
