Law of Cards: Hexbugs Bug Crypotoic's Hex Trademark App

Law of Cards: Hexbugs Bug Crypotoic’s Hex Trademark App

Cryptozoic's Hex has attracted legal issues like mosquitoes to a bug zapper.

Legal aside: It's summer, it's been raining a lot, and I've been bitten by mosquitoes on an almost daily basis. Plus, the bug reference will make more sense in few paragraphs.

First, Wizards of the Coast accused Hex of being a Magic the Gathering knockoff and swarmed it with trademark, patent and something like 190 potential copyright claims.

Legal aside: In all fairness, Wizards of the Coast did recently agree to limit the number of copyright claims it'll assert against Cryptozoic, but as of now, there's still a swarm of IP issues in that case.

Amid the bad news of the Wizards of the Coast suit, Cryptozoic did receive some good HEX news: its HEX trademark application was approved by the Trademark Office and published for opposition.

Legal translation: Just one more step and then it would be registered!

But then came the second bit of irritating, legal, Hex news: a company called Innovation First, Inc. requested additional time from the Trademark Trial and Appeal Board to consider whether or not it wanted to formally challenge Cryptozoic's HEX.

And this action halted the HEX application from proceeding.

Who is Innovation First? Well, it's the maker of those HEXBUG toys your kids love. Innovation First also owns trademarks on HEX and HEXBUG for "Toys and playsets, namely, mechanical action toys in the nature of creatures, vehicles, tracks, mechanisms, and parts thereof."

Innovation First appears to be concerned that Cryptozoic's HEX, which covers, among other things "paper goods, namely, comic books,…trading cards, coloring books, adhesive stickers, …posters,…pictures,…photographs and prints" might be a little too close to its "toys" trademarks.

Since Innovation First did not file a full-blown opposition, I imagine it is going to reach out to Cryptozoic to see if the parties can resolve this issue without the need to file an actual case.

Most likely, Innovation First simply wants Cryptozoic to limit its HEX application to trading card games, so it won't spread into other areas (like toys). If Cryptozoic can live with that, this will be a short-lived legal matter.

Legal comment: I don't see any overlap between these marks, so Innovation First's filing really is a minor annoyance. If Cryptozoic does not plan on launching Hex toys, it might try to exterminate the HEXBUG battle so it can focus on the much larger Wizards of the Coast case.

This would be in Cryptozoic's best interest because the Wizards of the Coast case won't be easy to swat. That case is going to bug Cryptozoic for a long time.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department ( Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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