An IP battle between two video game makers is growing more hostile as U.S. District Judge Jeffrey White of the Northern District of California mulls a motion to dismiss the case.
NetEase’s Quinn Emanuel Urquhart & Sullivan counsel said it had discovered that some game elements PUBG considers uniquely creative are actually clip art marketed by third parties. And PUBG’s claim that NetEase ripped off its catch phrase “Winner Winner Chicken Dinner” is a “false allegation,” according to the motion, which is signed by Quinn Emanuel partner Claude Stern.
PUBG v. NetEase is being closely watched in the video game industry. It’s a rare showdown between makers of two blockbuster games, and has the potential to shape copyright law for a lucrative young industry.
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PUBG sued NetEase in April, accusing it of copying numerous aspects of “Battlegrounds,” including the virtual weaponry players use to mow each other down. “The visual appearances of the weapons are realistic, but each weapon has been stylized to make it distinct from actual real life weapons,” PUBG states in its complaint.
NetEase’s Tuesday filing highlights several weapons and consumables pictured in PUBG’s complaint that appear to be identical—sometimes down to the serial number—of stock art that’s publicly available on the Unreal Engine Marketplace. “PUBG cannot allege a copyright claim based on art it neither owns nor has an exclusive license to,” Stern writes.
Stern acknowledged that it was too soon for NetEase to bring an actual Rule 11 motion alleging the failure to perform an adequate investigation. Parties must give their opponents 21 days to cure the problems, and that period had not run as of Tuesday, Stern wrote. But a Rule 11 motion will be brought “promptly” if PUBG doesn’t amend its complaint and identify all materials that came from third parties, he warned.
PUBG has not formally responded. But in email correspondence attached to the NetEase motion, Sidley Austin partner Rollin Ransom tells the Quinn attorneys there’s no basis for Rule 11. He describes NetEase’s filing as an improper end-around Rule 11, which precludes such motions from being “filed or presented to the court” until the 21 days have run.
“If you are sincerely interested in conferring respecting NetEase’s claimed concerns, please advise as to the specific amendments you believe are necessary, so that the parties can have a meaningful discussion,” Ransom wrote.
On Wednesday, White issued a brief order neither granting nor denying the stay, but instead ordering the parties to meet and confer face-to-face or by telephone, not over email.