Episode 22: Trademark issues in the Gaming Industry feat. Cards Against Humanity and Humanity Hates Trump (Part II)
This episode continues the conversation on trademark issues in the gaming industry. Staff Correspondent Christina Sauerborn talks with Special Guest Kyle Peterson. Kyle is a trademark attorney with Patterson Thuente IP in Minneapolis.1 Kyle is an expert on trade dress issues and has published extensively on trademark and related issues.
Christina begins the conversation by discussing Kyle’s online domain intellectual property practice. Kyle explains that many companies usually don’t clear domains ahead of time, and it is Kyle’s job to try and explain the realities of the online marketplace.
From there, Chistina transitions into the Cards Against Humanity dispute with SCS Direct.2 Kyle explains that Cards Against Humanity is clearly a senior user with a reputation. Furthermore, Cards Against Humanity has shown an intention to be very protective of their brand. For example, they have threats on their website to destroy any unauthorized expansions: “WE WILL SMASH YOU!”
SCS has already made some concessions but have held onto the black and white alleged trade dress. SCS filed suit after a complaint was alleged against them to Kickstarter. The trade dress is unregistered, so SCS is likely making a bet that Cards Against Humanity won’t meet the burden to prove the validity of the trade dress claim.
Christina and Kyle also discuss economic interests that could inform this legal conflict and future legal disputes. Does it matter that remixes may make the game more marketable and/or profitable? Furthermore, how does the size of the involved companies play into a determination of who will win the legal conflict?
In the end Kyle leaves listeners with recommendations for new entrants in the gaming marketplace: Clear your trademarks! Companies should want to build up their branding and reputation. This may involve playing off the original entrants in the marketplace. Overall, the longer a company is in the market, the more that consumers will recognize the product. The key to recognition: Be Distinctive!