A Good Breakdown of the MTG vs. Hex Lawsuit

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You've probably heard that Wizards of the Coast has filed a lawsuit against Cryptozoic. The lawsuit alleges that Hex: Shards of Fate is a Magic: The Gathering clone and makes claims based on patent, copyright, and trade dress infringement.


Until this lawsuit made the news, I had not heard of Hex. Knowing nothing about the game, I assumed that if WOTC was taking action like this that it would probably be successful, but this article by Paul Lesko does an excellent job breaking down the weaknesses in WOTC's case.

From the article, this is a summary of Cryptozoic's defenses against the three WOTC claims:

1)    For the patent claim, the patent expired two months ago,

2)    The copyright claim is "vague as to what is allegedly infringed," and

3)    The trade dress infringement claim (which requires WOTC to show a "likelihood of confusion" between Magic the Gathering and Hex) relies on "hearsay and unknown bloggers" while "fail to identify a single individual who has been actually confused." In fact, Cryptozoic points out that really, the "unidentified, bloggers clearly knows the difference between the Magic and Hex: Shards of Fate games."

It's really a fascinating read, so I recommend checking out the whole thing. If nothing else, it helped me realize that this case could be potentially game-changing in the world of TCGs, and I'm much more interested in the outcome after what I learned here. If Cryptozoic wins this case, it could mean an influx of new collectible card games on the market in the coming years.

Cryptozoic says that Magic players are "yearning for innovation." As a Magic player, do you agree?

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Danny Brown

Danny is a Cube enthusiast and the former Director of Content for Quiet Speculation.

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11 thoughts on “A Good Breakdown of the MTG vs. Hex Lawsuit

  1. I’ve been following the case pretty closely and I feel that Cryptozoic’s third defense is incredibly shaky. They’re basically claiming that the similarities between the presentation of Hex and Magic are significant enough that trade dress protection doesn’t apply.

    Let’s forget for a moment that “no one has been identified” who has been confused, because that isn’t actually important.

    What is important is that Cryptozoic has requested a trial by jury. This means that a jury of random American citizens is going to look at Duels of the Planeswalkers and then they’re going to look at Hex and then they’re going to decide if they’re confused by how similar the games look or if they can tell them apart.

    Not you. Not me. Not gamers. Not even casual geeks. Average. American. Citizens. Your parents. Your garbage man. The gas station attendant.

    What are the odds that a jury of non-gamers is going to be able to distinguish between Hex and DotP without any confusion? I would wager that number is much closer to zero than farther.

    Cryptozoic’s entire plan of attack seems incredibly flawed. They’re basically going to argue from the position that Wizards feels threatened by Cryptozoic and is using it’s financial power to eliminate potential competition. The problem with that argument is that Wizards has no reason to be threatened by Cryptozoic. Magic makes more money, by a vast margin, than any other collectible card game on the planet. They have a license to make a motion picture with FOX. They have a line of Funko toys.

    The branding and reach of Magic are very secure and certainly not under any threat from a niche online game designed by a studio that’s not clever enough to come up with their own game and took the ruleset from Magic.

    The final part of Cryptozoic’s argument is that the appearance of a Magic card is functional, not aesthetic. Wizards should have no problem fighting this claim. They’ve changed their card frame in the past and constantly change the templating of the presentation. The future-shifted card frame exists as do things like double-faced cards and flip cards. If the presentation of the card was functional, Wizards wouldn’t be able to take so many liberties with the appearance of the card.

    It’s easy to see how all three points can go either way. On the one hand, it’s easy for you and me to see the differences between Hex and Magic. They may as well be Chess and Candyland. But could your postman? Your grocer? Any random Jury member? It’s a much cloudier proposition. Similarly, it’s very noble and powerful to play the part of the underdog game studio being threatened by the vast reach of Hasbro, a gaming titan. On the other hand, Hex is much less of a threat to Wizards than it’s own ineptitude and it will be difficult to prove that Wizards is trying to monopolize its hold on digital CCGs when it’s never gone after any other game in that arena.

    Finally, the argument that what a Magic card looks like is a part of the function of the game is where this lawsuit could fundamentally change the industry. If so, then it means that the actual aesthetic of the cards, outside of the artwork, can’t be protected. This has enormous ramifications for products like Cockatrice and Magic Workstation and even Magic Online. If a court rules that the look of a Magic card is functional and not protected by copyright (other than the artwork) than literally anyone can make a better Magic Online so long as they don’t use the artwork from the cards. That could be a massive blow to Wizards.

    In the end I think requesting a jury is a big mistake on the part of Cryptozoic. I don’t think a jury of average Americans will be able to discern the difference between Hex and Magic. Their repeated claim that “no single person identified” has been confused by the two games will quickly disappear when twelve jurors are continually confused by the similarities.

  2. I could definitely see Hex and similar digital games detracting from Magic to some extent, but it’s much harder to build a network and brand as robust and well-defined as Magic’s even if you’re able to copy everything that you want about the game.

  3. Probably wrong about this, but the patent ran out two months ago. Were they not infringing before that/owe money as a result of that at the minimum? Their kickstarter happened like a year ago or something.

  4. After reading that article I think cryptozoic wins in a landslide. Without patent rights they have no proverbial leg to stand on.

    I am unsure how this effects cockatrice and magic workstation though. Both of them use magic art for cards so that is copyright-able. If they however separated themselves from the artwork/text side of the card and focused on being a generic ccg game client with plugins, they would avoid all patent/copyright litigation. They can just leave that side to others.

  5. Actually, it was WotC that request the jury trial and their hope is that non-games won’t be able to distinguish between the two games. To your average 50-70 yr old the games are the same. Gamers however would easily be able to distinguish between the two.

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