PUBG Corporation et al v. NetEase, Inc. et al
Filing
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COMPLAINT against NetEase Information Technology Corporation, NetEase, Inc. ( Filing fee $ 400, receipt number 0971-12240221.). Filed byPUBG Corporation, PUBG Santa Monica, Inc.. (Attachments: # 1 Civil Cover Sheet)(Baik, Steven) (Filed on 4/2/2018)
Case 4:18-cv-02010-DMR Document 1 Filed 04/02/18 Page 1 of 155
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Steven S. Baik (SBN 184622)
sbaik@sidley.com
Ryuk Park (SBN 298744)
ryuk.park@sidley.com
SIDLEY AUSTIN LLP
1001 Page Mill Road
Building 1
Palo Alto, CA 94304
Telephone: +1 650 565 7074
Facsimile: +1 650 565 7100
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Rollin A. Ransom (SBN 196126)
rransom@sidley.com
SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, CA 90013
Telephone: +1 213 896 6047
Facsimile: +1 213 896 6600
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Attorneys for Plaintiffs PUBG Corporation and
PUBG Santa Monica, Inc.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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PUBG Corporation and
PUBG Santa Monica, Inc.,
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Case No.
Plaintiffs,
PLAINTIFFS’ COMPLAINT FOR:
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vs.
NetEase, Inc. and
NetEase Information Technology Corporation,
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Defendants.
1) COPYRIGHT INFRINGEMENT UNDER
17 U.S.C. § 101 et seq.;
2) TRADE DRESS INFRINGEMENT
UNDER 15 U.S.C. § 1125(a);
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3) UNFAIR COMPETITION UNDER CAL.
BUS. & PROF. CODE § 17200 et seq. AND
CAL. COMMON LAW
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4) UNFAIR COMPETITION UNDER CAL.
COMMON LAW
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DEMAND FOR JURY TRIAL
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PLAINTIFFS’ COMPLAINT FOR COPYRIGHT INFRINGEMENT, TRADE DRESS
INFRINGEMENT AND UNFAIR COMPETITION
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Plaintiffs PUBG Corporation and PUBG Santa Monica, Inc. (collectively, “PUBG”), by and
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through their attorneys, for their complaint against Defendants NetEase, Inc. and NetEase
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Technology Corporation (collectively, “Defendants”) state as follows:
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INTRODUCTION
1.
This is an action for copyright infringement under the United States Copyright Act of
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1976, 17 U.S.C. § 101 et seq. (“Copyright Act”); trade dress infringement under the United States
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Trademark Act of 1946, 15 U.S.C. 1051 et seq. (“Lanham Trademark Act”); and unfair business
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competition under California State Law, Cal. Bus. & Prof. Code § 17200 et seq. (“California Unfair
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Competition Law”) and California common law.
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PARTIES
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Plaintiff PUBG Corporation (“PUBG”) is a corporation organized and existing under
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the laws of the Republic of Korea, having its principal place of business located at 7F, 8F, 12,
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Seocho-daero 38-gil, Seocho-gu, Seoul, Republic of Korea.
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Plaintiff PUBG Santa Monica, Inc. (“PUBG America”) is a corporation organized
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and existing under the laws of the State of Delaware, having its principal place of business located at
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1223 Wilshire Blvd. Num. 1015, Santa Monica, CA 90403. Plaintiff PUBG America is a wholly-
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owned subsidiary of Plaintiff PUBG.
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Upon information and belief, Defendant NetEase, Inc. (“NetEase”) is a corporation
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organized and existing under the laws of the Cayman Islands, having its principal place of business
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located at Building No. 7, West Zone, Zhongguancun Software Park (Phase II), No.10 Xibeiwang
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East Road, Haidian District, Beijing 100193, People’s Republic of China. Upon information and
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belief, NetEase is registered to do business in the State of Delaware under its former English name,
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NetEase.com (U.S.) Inc., and has a registered agent for service of process at The Corporation Trust
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Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. Upon
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information and belief, shares of NetEase have been listed on the NASDAQ Global Select Market
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since June 30, 2000, under the symbol “NTES,” and NetEase regularly files reports with the United
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States Securities and Exchange Commission. Upon information and belief, Defendant NetEase
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maintains an Investor Relations contact in New York, New York, in the United States.
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PLAINTIFFS’ COMPLAINT FOR COPYRIGHT INFRINGEMENT, TRADE DRESS
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Upon information and belief, Defendant NetEase Information Technology Corp.
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(“NetEase IT”) is a corporation organized and existing under the laws of California, having its
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principal place of business located at 2000 Sierra Point Parkway, Suite 800, Brisbane, California
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94005. Upon information and belief, Defendant NetEase Information Technology Corp. is a
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subsidiary of Defendant NetEase. Upon information and belief, Defendant NetEase Information
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Technology, Corp. operates under the name NetEase North America and/or the name NetEase
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Games. Upon information and belief, Defendant NetEase Information Technology, Corp.’s
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registered agent for service process is CT Corporation System (C0168406), 818 West Seventh
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Street, Suite 930, Los Angeles, CA 90017.
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JURISDICTION
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This Court has subject matter jurisdiction over PUBG’s claims for copyright
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infringement under the Copyright Act pursuant to 17 U.S.C. §§ 101, 501 et seq. and 28 U.S.C. §§
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1331 (federal subject matter jurisdiction) and 1338(a) (any act of Congress relating to copyrights,
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patents and trademarks).
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This Court has subject matter jurisdiction over PUBG’s claims for trade dress
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infringement under the Lanham Trademark Act pursuant to 15 U.S.C. 1051 et seq. and 28 U.S.C.
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§§ 1331 and 1338(a).
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8.
This Court has subject matter jurisdiction over PUBG’s claims for unfair competition
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under California Unfair Competition Law pursuant to Cal. Bus. & Prof. Code § 17200 et seq. and 28
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U.S.C. §§ 1338(b) and 1367.
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9.
This Court has personal jurisdiction over Defendant NetEase because it regularly
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conducts business in California and in this judicial district, including through its subsidiary,
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Defendant NetEase IT, and through distribution of its mobile games through the Apple App Store
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and the Android Google Play distribution network. This Court also has personal jurisdiction over
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Defendant NetEase because it has committed acts in California and in this judicial district giving rise
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to this action. To the extent Defendant NetEase is found not to be subject to jurisdiction in any
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state’s courts of general jurisdiction, this Court has personal jurisdiction over Defendant NetEase
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pursuant to Fed. R. Civ. P. 4(k)(2) because of its extensive contacts with the United States, including
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the acts giving rise to this action.
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This Court has personal jurisdiction over Defendant NetEase IT because it is
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incorporated in California, because it has its principal place of business in California and in this
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judicial district, and because it has committed acts in California and in this judicial district giving
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rise to this action.
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Defendants are subject to both specific and general personal jurisdiction. Defendants
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market, monetize, and support the derivative works described below throughout the United States by
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means of the Apple App Store and Android Google Play distribution network. Further, on
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information and belief, Defendants regularly solicit and conduct business in and/or derive substantial
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revenue from goods and services provided to residents of California. Accordingly, both jurisdiction
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and venue are proper in this court. 28 U.S.C. §§ 1391 and 1400.
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VENUE
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Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c) and
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pursuant to 28 U.S.C. § 1400(a), because a substantial part of the events giving rise to this action
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occurred in this judicial district, because Defendants are subject to this Court’s personal jurisdiction
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with respect to this action, and because all Defendants reside either within this judicial district or
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outside of the United States.
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INTRADISTRICT ASSIGNMENT
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Pursuant to Civil L. R. 3-2(c), this action is excluded from the Court’s division-
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specific venue rule and will be assigned on a district-wide basis because it is an Intellectual Property
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case.
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FACTUAL BACKGROUND
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Brendan Greene and the BATTLEGROUNDS Game
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Brendan Greene is a widely-recognized video game developer. Mr. Greene is well
known as “PlayerUnknown,” which is a screen name he used while playing and developing games.
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In or about March 2016, Bluehole Ginno Games, Inc. (“Bluehole Ginno”) hired Mr.
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Greene to develop a computer game, which ultimately was named PLAYERUNKNOWN’S
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BATTLEGROUNDS. On or about September 14, 2017, Plaintiff PUBG USA was formed as a
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wholly-owned subsidiary of Bluehole Ginno, to support the community of players and fans of
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PLAYERUNKNOWN’S BATTLEGROUNDS in the United States, including by promoting
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tournaments and interacting with players and streamers. On or about September 29, 2017, Bluehole
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Ginno was renamed PUBG Corp., and Plaintiff PUBG is the successor-in-interest to Bluehole Ginno
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with respect to PLAYERUNKNOWN’S BATTLEGROUNDS.
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PLAYERUNKNOWN’S BATTLEGROUNDS (“BATTLEGROUNDS”) was
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developed as a computer video game for personal computers (“PCs”) running the Windows
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operating system. In early 2017, BATTLEGROUNDS was made accessible to limited groups of
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players during closed alpha and beta testing and development periods. On or about March 23, 2017,
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an early-access beta version of BATTLEGROUNDS was made publicly available through Steam, an
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online computer game distribution site. On or about December 20, 2017, PUBG released version 1.0
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of BATTLEGROUNDS. PUBG has continued to expend considerable time, money and resources in
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further development and promotion of BATTLEGROUNDS, and in fostering the
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BATTLEGROUNDS community.
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Additionally, PUBG has developed and is continuing to develop versions of
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BATTLEGROUNDS for platforms other than PCs running the Windows operating system. For
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example, a licensed version of BATTLEGROUNDS for the Xbox gaming system was released on or
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about December 12, 2017. As another example, PUBG is working with a third party to develop and
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release mobile versions of BATTLEGROUNDS for the iOS and Android platforms. These mobile
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versions are currently in beta testing and were recently publicly released.
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Bluehole Ginno and PUBG expended significant time, money, and other resources to
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develop BATTLEGROUNDS. In early 2016, a team of about 35 developers was supporting this
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project, and by June 2017 the team had expanded to about 70 developers.
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BATTLEGROUNDS became an instant hit and has achieved high levels of success in
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the computer gaming and console gaming industry. When the early-access public beta version of
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BATTLEGROUNDS was released in March 2017, it sold a million copies in less than a month and
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reached the million-copies mark faster than any other game ever sold on the Steam distribution
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platform. By July 2017, BATTLEGROUNDS had achieved over one hundred million dollars in
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sales. By September 2017, over ten million copies of BATTLEGROUNDS had been sold. In
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September 2017, BATTLEGROUNDS broke an all-time Steam record by having 1.35 million
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concurrent players (i.e., players playing at the same time). In December 2017, BATTLEGROUNDS
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reached 3 million concurrent players.
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To date, over twenty-eight million copies of the PC version of BATTLEGROUNDS,
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and over four million copies of the Xbox version of BATTLEGROUNDS have been sold.
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Additionally, real-world and online BATTLEGROUNDS tournaments take place on a regular basis,
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with tens of thousands of participants, attendees, and viewers.
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Copyrightable Audiovisual Subject Matter in BATTLEGROUNDS
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BATTLEGROUNDS is an original work of creative expression that provides
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interactive audiovisual entertainment to players. BATTLEGROUNDS contains numerous unique,
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creative audio and visual elements, including numerous individual works of creative expression that
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each individually constitute copyrightable subject matter. Further, the selection and arrangement of
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individual audio and visual elements in BATTLEGROUNDS constitutes copyrightable subject
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matter. In addition, the total look and feel of BATTLEGROUNDS constitutes copyrightable subject
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matter.
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BATTLEGROUNDS is an original work of authorship and, its audio-visual aspects
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constitute copyrightable subject matter under the copyright laws of the United States. Plaintiff
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PUBG owns, and at all relevant times and including through its predecessor Bluehole Ginno has
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owned, the copyrights in BATTLEGROUNDS and has complied with all statutory requirements in
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securing a federal copyright registration for this work. Applications to register Plaintiff PUBG’s
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copyrights in the audio-visual aspects of the early-access public beta and subsequent versions of
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BATTLEGROUNDS for PC were filed on March 30, 2018. 1
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The copyrightable audiovisual aspects of the PC version of BATTLEGROUNDS 2
Case Nos. 1-6444365542 and 1-6444329777 (for PLAYERUNKNOWN’S BATTLEGROUNDS
(Version 2.6), and Case Nos. 1-6444365308 and 1-6444027916 (for PLAYERUNKNOWN’S
BATTLEGROUNDS (Version 2.1)).
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The current PC version of BATTLEGROUNDS differs from the early-access public beta version for
PC in certain respects but generally provides the same or similar game play experience and the
elements depicted here appear in both. The early-access Xbox version of BATTLEGROUNDS and
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include individual and collective creative and artistic expressions within the game, including but not
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limited to the following audio/visual/audiovisual/gameplay arrangement and look and feel.
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Pre-Game Lobby and Waiting Area. Each game of BATTLEGROUNDS begins
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with all of the players entering from a “lobby” to a designated waiting area on the play map.
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Typically, players wait in a lobby, where they can potentially chat, but not physically (in the virtual
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world) interact with each other or the game play environment. BATTLEGROUNDS provides a
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waiting area located within the game play map to allow the players to interact with each other and
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the game play area. Weapons such as hand-held melee weapons (e.g., machete, crowbar, and the
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iconic frying pan), grenades, hand guns, shot guns, and various types of rifles and machine guns are
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available for players to explore and experience without inflicting damage.
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The players are able to talk to and interact with each other, practice firing their weapons, and roam
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around the scene. The players remain in this interactive pre-game waiting area until enough players
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have connected to the game for competitive gameplay to begin.
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the closed beta development mobile versions of BATTLEGROUNDS also vary in certain aspects but
generally provide the same or similar game play experience as the PC versions. The elements
depicted here also appear in the Xbox version of BATTLEGROUNDS. Hereafter,
“BATTLEGROUNDS” refers to the first early-access public beta version for PC and subsequent
versions that are the subject of the copyright registration applications.
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The pre-game waiting area creatively provides the players with an interactive audiovisual
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experience, allowing them to engage with each other and explore the environment and weapons of
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the game before competitive gameplay begins. This lower-pressure, slower-paced illustration of
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objects, scenes, and actions is an artistic presentation that allows players to experience and
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appreciate these aspects of the animated fantasy world differently than they do during tense
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competitive gameplay. The creative expression of a pre-game lobby and interactive waiting area in
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BATTLEGROUNDS is a copyrightable audio-visual work, individually and/or in combination with
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other elements of BATTLEGROUNDS. Additionally, this creative expression of the pre-game
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lobby and interactive waiting area has taken on secondary meaning as an emblem of
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BATTLEGROUNDS and of PUBG. For example, it has been the subject of a live-action
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BATTLEGROUNDS parody skit, available at
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https://www.youtube.com/watch?v=cPGLLZu5lz4&list=PLSMETuURtTXCngmWf_wUWfnzTjn0
4XF-B&index=10.
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Air Jump. When a sufficient number of players have connected to the game
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(typically, 100 players), the players are transported to an aircraft. In other shooter games, players
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“spawn” or just appear on the game play map in either a pre-designated or random location. Rather
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than the typical spawning mechanic, BATTLEGROUNDS has created an interactive approach which
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allows the player to choose where to begin play on the game play map.
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As the aircraft flies over a game play map, the player can watch the aircraft and the game play map
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terrain underneath. The route of the aircraft is randomized for each game. The route can be seen on
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a mini-map embedded within a corner of the game play screen as well as a map screen showing the
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entire island in which the plane is indicated by a
symbol.
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Each player can choose to jump out of the aircraft anywhere along the route of the aircraft. The time
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at which a player chooses to jump affects the player’s experience in dropping down to ground level
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which, in turn, affects the location where the player will land. During the jump, the player can
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choose to free fall and guide him/herself towards different areas of the play map. During free fall,
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the player has a bird’s eye panoramic view of the play map and can view other players as they also
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descend to Earth.
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At any time before reaching a critical low altitude, the player can open his/her parachute and glide
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down to a landing.
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The Air Drop experience in BATTLEGROUNDS is a creative artistic experience created by PUBG.
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This aspect of the game artistically presents the fantasy world of BATTLEGROUNDS through
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unusual and varied angles of perspective and movement. It provides the player with a dynamic and
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interactive game-starting and location-selecting experience, in contrast to conventional shooter
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games in which characters spawn in pre-determined or random locations. Additionally, the player
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experiences an audiovisual representation of free-falling to earth while surveying the game play
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terrain and other players in freefall and while parachuting to earth—an unprecedented experience in
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shooter games. This creative and interactive expression of the introduction to a game play map
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expresses a narrative fantasy through creative images and sounds. The Air Jump is a copyrightable
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audio-visual work, individually and/or in combination with other elements of BATTLEGROUNDS.
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Additionally, this creative expression of the Air Jump has taken on secondary meaning as an emblem
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of BATTLEGROUNDS and of PUBG. For example, it has been featured in live-action
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BATTLEGROUNDS parody skits, such as those available at
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https://www.youtube.com/watch?v=4hqqFqcr1K8 and
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https://www.youtube.com/watch?v=cPGLLZu5lz4&list=PLSMETuURtTXCngmWf_wUWfnzTjn0
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4XF-B&index=10.
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Play Map. While many shooter games have a game play map, each game play map
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is unique. Similarly, PUBG created a unique game play map, as shown below, which is much larger
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than previous shooter games. The player’s decision when to jump from the aircraft and to freefall to
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a particular location on the game play map may also depend upon the actual game play map.
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BATTLEGROUNDS uses a single game play map entitled “Erangel.”
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As shown, above, Erangel is a large island with a secondary island connected by bridges and a
smaller third island (top right corner) that is not connected to the main island. The islands are
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populated with different types of game play areas and terrains, such as towns, a military base, a port,
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farms, a lighthouse, various buildings, canals, roads, open space and thousands of other unique
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elements. Plaintiff PUBG created Erangel, including the types and locations of game play areas, and
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the designs of the terrain and buildings, to give players a unique visual gameplay experience, as well
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as a diversity of areas for game play. The Play Map, a unique and creative expression of a game
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play map, is a copyrightable visual and/or audio-visual work, individually and/or in combination
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with other elements of BATTLEGROUNDS.
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Character Attributes. While many shooter games display attributes of a player,
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BATTLEGROUNDS include unique and creative expressions of certain types of attributes created
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by PUBG. Each player has a set of attributes, such as health and speed. All characters possess the
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same set of attributes. During gameplay, a health bar is displayed. A unique expression of health
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and abilities in BATTLEGROUNDS is the display of a “boost” bar. Initially, players start with zero
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boost. Certain items, explained with regard to consumables, below, can increase a player’s boost
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level. Depending upon the amount of boosting, the player’s health is increased at different rates over
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time. At higher levels of boost, the player also receives an increase in speed.
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The “boost” factor is unique to BATTLEGROUNDS, created to provide an additional dimension to
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the typical health/hit points attributes used in prior games. These and other creative expressions of
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the unique attributes, especially the effects of the level of boost, are copyrightable audio-visual
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works, individually and/or in combination with other elements of BATTLEGROUNDS.
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Additionally, this creative expression of boost has taken on secondary meaning as an emblem of
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BATTLEGROUNDS and of PUBG. For example, it has been featured in a live-action
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BATTLEGROUNDS parody skit, available at
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https://www.youtube.com/watch?v=DBwpMDaMoOI&list=PLSMETuURtTXCngmWf_wUWfnzTj
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n04XF-B&index=1.
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Equipment Acquisition. In BATTLEGROUNDS, each player lands with nothing
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except clothing and a belt. After landing, the player must seek out weapons, modifications to
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weapons, ammunition, armor, equipment, clothing and consumables. The player can also find and
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use vehicles located throughout the map. Starting with nothing is a key creative and artistic
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component of BATTLEGROUNDS. The requirement of scavenging results in the players being
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forced to compete for resources and necessary interaction.
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visual work, individually and/or in combination with other elements of BATTLEGROUNDS.
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Additionally, this creative expression of equipment acquisition has taken on secondary meaning as
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an emblem of BATTLEGROUNDS and of PUBG. For example, it has been featured in live-action
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BATTLEGROUNDS parody skits, such as those available at
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PLAINTIFFS’ COMPLAINT FOR COPYRIGHT INFRINGEMENT, TRADE DRESS
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BATTLEGROUNDS’ unique expression of Equipment Acquisition is a copyrightable audio-
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https://www.youtube.com/watch?v=kM8Cws9tiTQ&list=PLSMETuURtTXCngmWf_wUWfnzTjn0
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4XF-B&index=5 and https://www.youtube.com/watch?v=4hqqFqcr1K8.
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Weapons, Modifications and Ammunition. BATTLEGROUNDS includes realistic
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weapons to simulate real life combat. PUBG created a realistic combat environment, including
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realistic weapons action (e.g., recoil) and sounds. These expressions of specific weapon audio
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elements used in BATTLEGROUNDS are protectable works as a combination of the audio synced
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to the visual operation of the weapons. The types of weapons include melee weapons (e.g., crowbar,
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machete, sickle and a frying pan), bows, hand guns, rifles, shot guns, assault rifles, sniper rifles,
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machine guns and grenades. The visual appearances of the weapons are realistic, but each weapon
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has been stylized to make it distinct from actual real life weapons. For example, the grain pattern on
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wooden pieces, configurations of the rifles and machine guns, the wear on melee weapons all
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provide unique details and styling to each weapon, as seen below.
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Ammunition for the various firearms can also be found. To add further realism, items that modify
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the operation of the firearms can also be found, such as different types of optical scopes, stocks,
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magazines of varying capacities, suppressors, and grips. The variety of modifications provides
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thousands of combinations of available weapons, leading to diverse gameplay. Additionally, PUBG
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assigned specific characteristics to each weapon, such as the amount of damage per hit they inflict,
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recoil, reload time, number of rounds per magazine, range, blast radius (e.g., shotgun and grenades).
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31.
These expressions of specific characteristics of the weapons, weapon modifications,
and ammunition are copyrightable works, providing realism during gameplay as well as a balanced
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game experience for the players. With regard to damage, PUBG added a further creative aspect to
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the BATTLEGROUNDS game. As discussed further with regard to armor, the amount of damage
3
depends upon where the opposing player is hit. If the opposing player is hit in the body or the head,
4
different amounts of damage are inflicted on the opposing player. Additionally, the amount of armor
5
worn by the opposing player affects the amount of damage received by the opposing player. All
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these unique expressions of BATTLEGROUNDS weapons, weapon modifications, and ammunition
7
are individually and/or in combination with each other or with other elements of
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BATTLEGROUNDS protectable copyrightable audio, visual and/or audio-visual works.
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32.
Armor. In addition to weapons, the player can find and use various types of armor.
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In particular, the types of armor in BATTLEGROUNDS include helmets and vests. Helmets
11
provide armor protection to the player’s head, while the vests provide armor protection to the body.
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There are three levels of armor protection for both helmets and vests. Vests also increase carrying
13
capacity, as explained further with regard to belts and backpacks, below. Again, PUBG created
14
specific statistics for the amount of armor protection and reduction in damage received from a hit.
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Additionally, each piece of armor can only absorb a specific amount of damage (i.e., hit points)
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before the armor is rendered ineffective. Shown, below, are images of the various armor and
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helmets.
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The helmet with the visor, in particular, has achieved secondary meaning, becoming intricately
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identified with BATTLEGROUNDS. A Google search for “PUBG helmet” or “Battlegrounds
27
helmet” results in hits that for the most part include the image of the helmet with the visor. PUBG
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created unique visually realistic appearing expressions of armor such as helmets and vests, while
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adding flair and artistry to these expressions to make them copyrightable visual and/or audio-visual
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works, individually and/or in combination with each other or with other elements of
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BATTLEGROUNDS.
4
33.
Clothing. In addition to armor, the user can pick up additional clothing, such as
5
jackets, pants, hats, goggles, glasses, gloves, masks, shoes and shirts. The pieces of clothing do not
6
affect gameplay but is an artistic expression that provides the player with a visually diverse
7
gameplay experience as well as allowing each player to express him/herself. The use of mixed
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street-wear and military equipment further reinforces the imaginative experience for players by
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furthering the game’s premise in which everyday citizens from different backgrounds are forced into
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an environment in which only one player will be left alive.
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However, clothing does affect gameplay in terms of camouflage. Clothing can be used to assist the
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player to blend in with the environment, making the player less visually detectable. In particular,
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BATTLEGROUNDS includes a Ghillie suit, a full body suit covered with camouflaging material
27
typically used by snipers. The Ghillie suit allows the player to become nearly visually invisible
28
depending upon the terrain.
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Unlike other shooter games, BATTLEGROUNDS does not display player designators above
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opposing players. The player must visually detect an opposing player without any aid other than
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equipment found in gameplay, such as an optical scope. Thus, the colors and stylings of the clothing
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found in BATTLEGROUNDS adds to the rich tapestry of the gameplay experience while permitting
14
artistic expression. The appearances and styles of clothing found in BATTLEGROUNDS are
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protectable visual and/or audio-visual works, individually and/or in combination with each other or
16
with other elements of BATTLEGROUNDS.
17
34.
Equipment. The BATTLEGROUNDS player can also find equipment, such as belts
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and backpacks. Belts and backpacks not only have unique visual appearances, they are functional as
19
well. Each player starts with a belt, which permits the player to hold a certain amount of items
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(capacity). Additionally, the belt allows the player to attach two weapons to his/her waist, such as a
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melee weapon or grenade. The backpack provides additional carrying capacity.
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The belts and the different types of backpacks can carry different amounts of equipment and
2
supplies, as developed by PUBG. As noted, PUBG also created uniquely creative visual appearances
3
for each belt and backpack, making them copyrightable visual and/or audio-visual works,
4
individually and/or in combination with each other or with other BATTLEGROUNDS elements.
5
35.
Configuration. The player has the freedom to determine how to equip him/herself
6
during gameplay. PUBG designed slots for easily accessible weapons. In particular, two slots are
7
designated for rifles or shotguns, each carried around one of the player’s shoulders. A third slot is
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designated for a hand gun. Fourth and fifth slots are designated for melee weapons or grenades, to
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be carried along the player’s waist.
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Additionally, clothing, equipment and armor are equipped as appropriate on the character’s body.
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The particular set up of the configurable slots is a unique expression created by PUBG, and the slots
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are copyrightable visual and/or audio-visual works, individually and/or in combination with each
22
other or with other BATTLEGROUNDS elements.
23
36.
The “Frying Pan.” One very beloved aspect of creative expression in
24
BATTLEGROUNDS is the game’s iconic frying pan. Previous shooter games did not include the
25
use of a frying pan. In BATTLEGROUNDS, a character who obtains a frying pan may use it as a
26
hand-held melee weapon and also may use it as armor. When the frying pan is equipped on a
27
character’s waist, the frying pan is depicted as covering the character’s posterior (buttocks). When
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so equipped, as a purely artistic and creative expression injecting humor into the game, the frying
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pan is the only indestructible armor in the game (i.e., armor that can absorb infinite hit points
2
without deteriorating), providing complete protection against projectiles aimed at a character’s
3
posterior. Thus, the imaginative treatment of a frying pan as a melee weapon is made even more
4
remarkable by its further treatment as armor against shots to the butt of a character. The frying pan
5
element thus creatively adds humor and whimsy to the audiovisual presentation of the game. PUBG
6
animation of a frying pan as both weapon and indestructible butt armor is a copyrightable visual
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and/or audio-visual work, individually and/or in combination with other elements of the
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BATTLEGROUNDS.
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Character holding frying pan as melee weapon
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Ricochet off frying pan worn as armor
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Furthermore, the frying pan has taken on secondary meaning as an emblem of the
2
BATTLEGROUNDS game and of PUBG. For example, it has been the subject of a live-action
3
BATTLEGROUNDS parody skit, available at,
4
https://www.youtube.com/watch?v=jfQGY8xaxO0&list=PLSMETuURtTXCngmWf_wUWfnzTjn0
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4XF-B&index=12. It has also been featured in other BATTLEGROUNDS parodies and memes.
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See, e.g., https://www.youtube.com/watch?v=bywZTWzkuQM; see also
7
https://9gag.com/gag/aVM1Aby/best-pubg-armor.
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Sample PUBG frying pan meme
18
37.
Consumables. While the player attempts to stay alive, he/she can also gather
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consumables, such as bandages, first aid and medical kits, painkillers, adrenaline syringes, energy
20
drinks and gas cans. Bandages, first aid kits and medical kits heal the character’s health varying
21
amounts instantly upon application, the application time of each also varying. The energy drink,
22
painkiller and syringe increase the player’s boost level, which provides regeneration over time
23
and/or an increase in player speed, as discussed with regard to boost level, above. However, the
24
energy drink instantly increases the player’s character’s health a set amount, and also increases the
25
player’s boost level. The syringe can only be found in an air dropped supply box, and provides the
26
largest amount of increase in boost level, providing healing and speed boost. The gas can is used to
27
refuel vehicles, as discussed further, below. The expressions of the consumables’ abilities to
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increase the health of a player, as well as increasing the player’s boost level, are unique to
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BATTLEGROUNDS and are copyrightable visual and/or audio-visual works, individually and/or in
3
combination with each other or with other BATTLEGROUNDS elements. Additionally, the unique
4
depictions of certain consumables in BATTLEGROUNDS, such as the energy drinks, have taken on
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secondary meaning as emblems of BATTLEGROUNDS and PUBG due to their non-traditional,
6
light-hearted and whimsical use. For example, the energy drinks have been the subject of a live-
7
action BATTLEGROUNDS parody skit, available at
8
https://www.youtube.com/watch?v=DBwpMDaMoOI&list=PLSMETuURtTXCngmWf_wUWfnzTj
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n04XF-B&index=1 and
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https://www.youtube.com/watch?v=V_vUrY1MczI&index=9&list=PLSMETuURtTXCngmWf_wU
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WfnzTjn04XF-B&index=9 ; see also https://www.youtube.com/watch?v=V_vUrY1MczI.
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38.
Vehicles. Plaintiff PUBG has included vehicles to BATTLEGROUNDS to provide
13
an immersive life like experience. In addition to the planes that drop the players and supply boxes,
14
various automobiles and boats can be found throughout the game play map. Automobiles include
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stylized buggies, off road vehicles, motorcycles (with or without a sidecar), vans, pickups, and
16
sedans. Each automobile has distinctive operating sounds that can be recognized by experienced
17
players. The automobiles come in varying colors and conditions. Automobiles also start with a
18
certain amount of boost, which when activated increases the speed of the automobile but at the cost
19
of increased fuel consumption. As noted previously, players can refuel automobiles with gas cans.
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39.
The automobiles exhibit realistic handling. For example, taking a hard turn may
19
cause the automobile to flip over. Automobiles may also provide a measure of protection from fire
20
from opposing players as well, but can also explode from enemy fire. Additionally, players can
21
obtain a speed boat or jet ski to travel over the water to the islands. Additionally, other types of
22
vehicles can be seen and heard throughout the game, such as the plane used for the parachute drop,
23
and the plane used for parachuting supply boxes, as discussed further, below. These vehicles also
24
have distinctive and artistic operating sounds which players can recognize during game play. These
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expressions of vehicles in BATTLEGROUNDS are copyrightable audio, visual and/or audio-visual
26
works, individually and/or in combination with each other or with other BATTLEGROUNDS
27
elements. These expressions of vehicles have also taken on secondary meaning as an emblem of
28
BATTLEGROUNDS and of PUBG. For example, they have been featured in live-action
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BATTLEGROUNDS parody skits, such as those available at
2
https://www.youtube.com/watch?v=sQ6s6ujf6kY&list=PLSMETuURtTXCngmWf_wUWfnzTjn04
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XF-B&index=2 ,
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https://www.youtube.com/watch?v=V_vUrY1MczI&index=9&list=PLSMETuURtTXCngmWf_wU
5
WfnzTjn04XF-B&index=9, and https://www.youtube.com/watch?v=4hqqFqcr1K8.
6
40.
Weapon, Equipment and Vehicle Spawning. While many of the weapons,
7
consumables and vehicles are located randomly throughout the game play map, they may also spawn
8
at certain set locations. Fixed spawn locations allows experienced players to focus on certain areas
9
of the game play map to obtain items and vehicles. Spawn locations of highly desired items further
10
promote players to interact in BATTLEGROUNDS. The mix of randomness and fixed spawn
11
locations provides unlimited possibilities for game play strategy. These expressions of weapons,
12
equipment, and vehicle spawning are copyrightable visual and/or audio-visual works, individually
13
and/or in combination with other elements of BATTLEGROUNDS.
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15
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Equipment spawning in a house
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Vehicle spawning in a garage
41.
Game Areas & Buildings. The BATTLEGROUNDS game play map includes a
number of areas, such as towns, farms, a power plant and even a shooting range. The artistic
renderings and locations of these areas provide an entertaining backdrop to game play in
BATTLEGROUNDS.
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In addition, PUBG has created artistic renderings of various type of buildings throughout the
immersive game play map. Buildings include outposts, warehouses, houses, buildings, and even a
lighthouse. Again, the variety and types of buildings create a realistic environment, as well as
21
22
providing strategic locations for game play.
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Thus, these expressions of landscapes and buildings within BATTLEGROUNDS are copyrightable
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visual and/or audio-visual works, individually and/or in combination with each other or with other
27
elements of BATTLEGROUNDS.
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42.
Movement. Players can move around in many different ways. They can stand, walk,
2
run, take a prone position, crawl in a prone position or take a kneeling position. The various
3
positions provide benefits and disadvantages. For example, a player can shoot a rifle most
4
accurately in a prone position, but leaves the player vulnerable if detected. Shooting from a standing
5
position is less accurate, but the player can readily walk or run to cover after taking a shot.
6
However, walking and running creates more noise than crawling. These expressions of player
7
movements and accompanying sounds in Battleground are copyrightable audio, visual and/or audio-
8
visual works, individually and/or in combination with each other or with other elements of
9
BATTLEGROUNDS.
10
43.
Sounds and Noise. The audiovisual experience of BATTLEGROUNDS includes
11
numerous expressive sounds that contribute to the audiovisual depiction of the imaginary spaces,
12
objects, and actions. Unlike other computer games, there is no music during gameplay. The player
13
must listen to his/her environment to obtain a competitive edge. For example, the player can hear an
14
opposing player’s footsteps, a supply drop aircraft flying overhead, and the distinctive gunshots of
15
the various firearms. PUBG created each unique sound to augment the realism of the audiovisual
16
presentation; they allow the player to react to the sounds and, with a trained ear, distinguish the type
17
of firearm being used. As another example, each vehicle sounds different. A player can discern the
18
approach of a vehicle, and potentially determine the vehicle type, from sounds. These distinctive
19
audiovisual expressions add richness to the gameplay created by PUBG. In fact, many
20
commentators have identified the relationship between success in the game and the ability to identify
21
and discern these player, weapon and vehicle sounds. See, e.g.,
22
https://www.turtlebeach.com/blog/how-audio-helps-you-get-your-chicken-dinner-in-pubg/;
23
https://www.redbull.com/gb-en/pubg-xbox-one-tips-guide;
24
https://www.youtube.com/watch?v=zBSBu72qF0s. The game also includes other distinctive
25
sounds, such as the sounds of parachuting through the wind, the sounds of male and female
26
characters being attacked, the sound of tires destroying objects, and the sounds of item acquisition.
27
These unique sounds are copyrightable in combination with other elements of BATTLEGROUNDS.
28
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44.
Air Drops. Another artistic aspect of BATTLEGROUNDS are air drops of supply
2
boxes from a flying aircraft. As the aircraft approaches, the players can hear the sound of the
3
aircraft, alerting them to a potential air drop.
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The supply boxes are colored red and covered by a blue tarp, and parachute down from the aircraft.
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When the supply box lands, red smoke wafts up from the landing site, drawing the attention of
2
players to the location of the supply box and creating a dramatic visual impression.
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The supply box provides the first player to reach it with either weapons, modifications to weapons
21
(e.g., a scope), ammunition, clothing (e.g., camouflaged clothing) or medical supplies. Players can
22
either speed towards the supply box to obtain the supplies, or lurk around the supply box to snipe
23
other players that approach the supply box. These expressions of air drops in BATTLEGROUNDS
24
are copyrightable, individually and/or in combination with each other or with other elements of
25
BATTLEGROUNDS. The supply boxes also have also taken on secondary meaning as an emblem
26
of BATTLEGROUNDS and of PUBG. Fans have created skits evoking the identifiable red smoke
27
and red and blue supply boxes. See https://www.youtube.com/watch?v=0dG6HliC9OI;
28
https://www.youtube.com/watch?v=YDp87dUytd8.
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45.
Bombardment Zone (Red Zones). PUBG inserted an artistic periodic event where a
2
circular zone, marked in red on the game map, is targeted for bombardment. Prior to bombardment,
3
the players are warned of the impending barrage. This creative event conveys fear, danger, and
4
urgency, causing players to either seek shelter or evade the bombardment, potentially running into
5
other players. However, merely obtaining shelter may not completely protect the player if he/she is
6
too near an opening (e.g., door or window). The bombardment is an artistic catalyst to create further
7
interaction between the players. This expression of a bombardment zone is a copyrightable visual
8
and/or audio-visual work, individually and/or in combination with other elements of
9
BATTLEGROUNDS. The bombardment zone has also taken on secondary meaning as an emblem
10
of BATTLEGROUNDS and of PUBG. For example, it has been featured as a punchline in multiple
11
live-action BATTLEGROUNDS parody skits, available at
12
https://www.youtube.com/watch?v=pqSN7lsPs2k.
13
46.
Shrinking Gameplay. The conclusion of each game is creatively precipitated by the
14
shrinking of the gameplay area within the map. A timer is provided to the players notifying them
15
when the viable play area will shrink to a circle within the game play map. The first large circle is
16
displayed in white on the game map, indicating where the players will be confined after the timer
17
expires. A large blue circle covering the entire map appears and slowly shrinks down to the first
18
white circle. Players caught outside of the closing blue circle will begin losing health until they
19
either reach the interior of the first white circle or their health falls to zero. A new timer begins and
20
a smaller circle within the first circle appears on the map. After the expiration of the second timer,
21
the first circle is displayed in blue, which begins shrinking down to the smaller white. The process
22
repeats four times, until the game play is restricted to a final circle of area representing a relatively
23
small area within the game play map.
24
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The rate of loss of health outside the circles also increases, players caught outside the final circle
instantly falling to zero health. This creative aspect of BATTLEGROUNDS forces the players to
converge to a single location to resolve who will be the last player standing. The timing, sizes, and
progression of the shrinking game play area results in a unique experience in each game, paces
gameplay to reduce lulls in the action, and provides ever increasing tension in the game. PUBG’s
expression of the shrinking game play area is a copyrightable visual and/or audio-visual work,
individually and/or in combination with other elements of BATTLEGROUNDS. The shrinking
game play area has also taken on secondary meaning as an emblem of BATTLEGROUNDS and of
PUBG. For example, it has been the subject of various live-action BATTLEGROUNDS parody
skits. See
https://www.youtube.com/watch?v=RPFZgk_O8Ok&list=PLSMETuURtTXCngmWf_wUWfnzTjn
28
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04XF-B&index=3;
2
https://www.youtube.com/watch?v=V_vUrY1MczI&index=9&list=PLSMETuURtTXCngmWf_wU
3
WfnzTjn04XF-B&index=9; https://www.youtube.com/watch?v=pqSN7lsPs2k;
4
https://www.youtube.com/watch?v=YDp87dUytd8; and
5
https://www.youtube.com/watch?v=4hqqFqcr1K8. See also
6
https://www.youtube.com/watch?v=sQ6s6ujf6kY&list=PLSMETuURtTXCngmWf_wUWfnzTjn04
7
XF-B&index=2;
8
https://www.youtube.com/watch?v=5FW7xb8jWew&list=PLSMETuURtTXCngmWf_wUWfnzTjn
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04XF-B&index=25.
10
47.
“Down But Not Out.” BATTLEGROUNDS features three play modes: (1) “solo” in
11
which a each player fights alone against the field; (2) “duo” in which players are teamed into groups
12
of two and fight to be the last duo remaining; and (3) “squad” in which players are grouped into
13
squads of 4 and fight to be the last squad remaining. In “duo” and “squad” modes, every member of
14
a team needs to die to be considered defeated. However, in both modes, players survive for a short
15
time even after their health/energy has been depleted. During this time, that player may be revived
16
by a team who crouches next to the fallen player for a pre-determined period of time which is
17
referred to as “Down But Not Out (“DBNO”).” PUBG’s expression of DBNO gameplay is a
18
copyrightable visual and/or audio-visual work, individually and/or in combination with other
19
elements of BATTLEGROUNDS. The DBNO gameplay element has also taken on secondary
20
meaning as an emblem of BATTLEGROUNDS and of PUBG. For example, it has been the subject
21
of various live-action BATTLEGROUNDS parody skits. See
22
https://www.youtube.com/watch?v=HhZZIu8Yem4&list=PLSMETuURtTXCngmWf_wUWfnzTjn0
23
4XF-B&index=4;
24
https://www.youtube.com/watch?v=KD9sMqp7bdE&list=PLSMETuURtTXCngmWf_wUWfnzTjn
25
04XF-B&index=6; and
26
https://www.youtube.com/watch?v=5FW7xb8jWew&list=PLSMETuURtTXCngmWf_wUWfnzTjn
27
04XF-B&index=25.
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48.
“Winner Winner Chicken Dinner.” Should a player be the last player standing at
2
the end of the game, he/she is rewarded with a salutary “Winner Winner Chicken Dinner!”
3
announcement.
4
5
6
7
8
9
10
11
Victory Screen from BATTLEGROUNDS
12
The juxtaposition of this lighthearted expression of victory with the survival narrative of the game
13
adds elements of surprise and humor to the work, and the artistic inclusion of this emphatic
14
expression has become particularly beloved by the gaming community. “Winner Winner Chicken
15
Dinner” in the context of a shooter game is a copyrightable work in combination with other elements
16
of Battleground. Furthermore, this catchphrase has taken on secondary meaning within the gaming
17
community as an emblem of BATTLEGROUNDS and of PUBG; it has become nearly synonymous
18
with BATTLEGROUNDS to gamers.
19
As an example, this phrase also has been featured in memes, live-action parody videos, and other
20
responsive content created by fans. For example, it has been featured in live-action
21
BATTLEGROUNDS parody skits, such as those available at
22
https://www.youtube.com/watch?v=jfQGY8xaxO0&list=PLSMETuURtTXCngmWf_wUWfnzTjn0
23
4XF-B&index=12, https://www.youtube.com/watch?v=O9JsWOo-
24
Qyk&list=PLSMETuURtTXCngmWf_wUWfnzTjn04XF-B&index=13,
25
https://www.youtube.com/watch?v=EAnPxrg5kUE&index=16&list=PLSMETuURtTXCngmWf_w
26
UWfnzTjn04XF-B&index=16, and https://www.youtube.com/watch?v=4hqqFqcr1K8, and it has
27
also been featured in other BATTLEGROUNDS parodies and memes.
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2
Copying in Rules of Survival Game
49.
Rules of Survival: Rules of Survival (“ROS”) is a video game that was made and
3
released by Defendants. ROS was released for mobile devices in the United States on or about
4
November 14, 2017.
5
6
7
50.
On information and belief, Defendants created ROS by copying BATTLEGROUNDS
and with the intention of creating a version of BATTLEGROUNDS for mobile devices.
51.
On information and belief, Defendants intended to create consumer confusion as to
8
the source of ROS and intended to cause consumers to believe, incorrectly, that ROS had been
9
developed by PUBG. On information and belief, Defendants intended to misappropriate consumer
10
11
goodwill toward PUBG in order to market and gain economic benefit from ROS.
52.
On information and belief, there has in fact been confusion in the marketplace as to
12
the source and origin of ROS, with consumers believing, incorrectly, that ROS was developed by
13
PUBG. For example, ROS has been referred to in the marketplace as “PUBG on Mobile,” “Mobile
14
PUBG,” and the “BEST MOBILE PUBG”:
15
16
17
18
19
20
21
22
23
24
25
26
Sampling of player videos available at https://goo.gl/hNupQo
27
28
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53.
On information and belief, commentators in the industry have characterized ROS as a
2
copy, “rip-off,” “knock-off,” or “clone” of BATTLEGROUNDS. For example, one industry
3
commentator observed that “fans viewed the game [i.e., ROS] simply as a rip-off of the highly
4
successful ‘PlayerUnknown’s Battlegrounds (‘PUBG’)” because “[e]verything about it screamed
5
‘PUBG’ as the majority of its elements seem to have been taken from the popular Xbox One title.”
6
https://www.christiantoday.com/article/rules-of-survival-update-includes-bigger-map-that-can-fit-
7
300-players/125498.htm. Other industry commentators have repeatedly characterized ROS as a
8
“clone” or “knock-off” of BATTLEGROUNDS, or “[h]eavily modeled after” BATTLEGROUNDS.
9
Samples of such commentary are available at http://toucharcade.com/2018/02/07/new-300-player-
10
fearless-fjord-map-is-now-playable-in-latest-rules-of-survival-update/;
11
https://www.cnet.com/news/playerunknown-battlegrounds-mobile-rules-of-survival-clone/;
12
http://www.pocketgamer.co.uk/r/Android/Rules+of+Survival/feature.asp?c=76595; and
13
https://www.vg247.com/2017/10/18/remember-that-chinese-mobile-pubg-knock-off-its-back-with-
14
new-gameplay/.
15
54.
On information and belief, the ROS app can be downloaded to a mobile device free of
16
charge, and the ROS game can be played free of charge. On information and belief, Defendants have
17
released ROS into the marketplace at or below cost for the purpose of gaining market share before
18
PUBG releases BATTLEGROUNDS for mobile devices.
19
20
21
22
55.
ROS contains many elements that are substantially similar to copyrightable elements
of creative audiovisual expression in BATTLEGROUNDS, including at least the following.
56.
Total Look and Feel. The overall look, feel, and audiovisual style of ROS closely
mimic the stylized realism of BATTLEGROUNDS.
23
24
25
26
27
28
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Rules of Survival
BATTLEGROUNDS
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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2
3
4
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6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
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57.
Overall Gameplay. The overall look and feel of gameplay in ROS very closely
matches that of BATTLEGROUNDS. For example, the narrative arc of the game; the audio and
visual representations of movement, shooting, healing and boosting; and the battle formats presented
(e.g., player versus everyone and small teams versus everyone) all correspond to those of
BATTLEGROUNDS.
58.
Boosting. ROS includes boosting misappropriates the boosting aspect of
BATTLEGROUNDS, thus copying this unique expression of bodily nourishment and fortification in
the artistic manner created by PUBG. ROS includes a health (hit points) bar with symbols located
over it: a heart with a plus symbol, which indicates regeneration, and a running symbol indicating
increased speed, very similar to BATTLEGROUNDS’ boost bar. Both BATTLEGROUNDS and
ROS offer an energy drink as one boost item and a syringe as another boost item, and in both games
the syringe is available only via air drop. In both games, the energy drinks increases hit points, and
potentially a boost in speed. In both games, the syringe restores a greater amount of health as well
26
27
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as providing increased speed.
2
3
4
5
6
7
8
9
10
59.
Pre-Play Area. As in BATTLEGROUNDS, the ROS audiovisual experience begins
11
with a pre-play area where players can meet each other and try out weapons while waiting for
12
enough players to join. While prior games have used pre-play screens and areas, the expressive
13
depiction of a pre-play area in BATTLEGROUNDS, which encourages players to interact with
14
another, use weapons, and explore gameplay mechanics is unique. On information and belief,
15
Defendants copied PUBG’s expressive depictions of the pre-play area where other depictions could
16
have been used for the purpose of evoking the same pre-play experience depicted in
17
BATTLEGROUNDS.
18
19
20
21
22
23
24
25
26
27
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60.
Play Map. Like BATTLEGROUNDS, ROS provides a map defining the area of
2
play, and the ROS map is substantially similar to the BATTLEGROUNDS map. The
3
BATTLEGROUNDS map and ROS map each comprises a large island in a square-ish shape with a
4
canal leading to a large city, along with a smaller unconnected island. Both maps feature towns,
5
farms, buildings, fields, trees, roads, bridges and feature mountainous topography which is depicted
6
as if taken using a reconnaissance satellite as well as featured location indicators and white lettered
7
descriptions of those featured areas. Although maps have been used in prior games, the depiction of
8
the map in ROS is strikingly similar to the depiction of the map in BATTLEGROUNDS. On
9
information and belief, Defendants copied PUBG’s expressive depiction of the map where another
10
depiction could have been used.
11
12
13
14
15
16
17
18
19
20
21
22
BATTLEGROUNDS Play Area Map
23
24
25
26
27
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2
3
4
5
6
7
8
9
10
ROS Play Area Map
11
12
61.
Scenes and Locations. Many of the locations, structures, landscapes, and other
13
features within the ROS play area closely correspond to those within the BATTLEGROUNDS play
14
area. For example, the BATTLEGROUNDS play area and the ROS play area each contain a
15
shooting range, a rural aqueduct, a port with shipping containers and a farm area. These areas in KO
16
are strikingly similar to those in BATTLEGROUNDS. On information and belief, Defendants
17
copied PUBG’s expressive depictions of the scenes and locations identified below where other
18
depictions could have been used for the purpose of evoking the same gameplay experience depicted
19
in BATTLEGROUNDS.
20
21
22
23
24
25
26
27
28
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2
3
4
5
6
7
8
9
BATTLEGROUNDS shooting range
10
11
12
13
14
15
16
17
18
19
ROS shooting range
20
21
22
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Additionally, they each contain a concrete aqueduct in a rural setting.
2
3
4
5
6
7
8
9
10
11
BATTLEGROUNDS rural aqueduct
12
13
14
15
16
17
18
19
20
21
ROS rural aqueduct
22
23
24
25
26
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Additionally, they each contain a port with many shipping containers, where items spawn in similar
2
locations in both games.
3
4
5
6
7
8
9
10
11
BATTLEGROUNDS port with shipping containers
12
13
14
15
16
17
18
19
20
ROS port with shipping containers
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22
23
24
25
26
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Additionally, they each contain a farm area with a tractor and haystacks that provide cover.
2
3
4
5
6
7
8
9
BATTLEGROUNDS farm area
10
11
12
13
14
15
16
17
18
ROS farm area
19
20
62.
Buildings. The ROS play area contains numerous buildings that are substantially
21
similar to buildings in BATTLEGROUNDS. Although buildings have been used in prior games, the
22
facades and layouts of the buildings in ROS are strikingly similar to those in BATTLEGROUNDS.
23
On information and belief, Defendants copied PUBG’s expressive depictions of the buildings
24
identified below where other depictions could have been used for the purpose of evoking the same
25
gameplay experience depicted in BATTLEGROUNDS. For example, each game contains a two-
26
story home with a garage, garage roof deck, front door, windows, rooflines, and masses of the same
27
shapes, proportions, and layouts.
28
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2
3
4
5
6
7
8
9
BATTLEGROUNDS two-story home
10
11
12
13
14
15
16
17
18
ROS two-story home
19
20
21
22
23
24
25
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2
3
4
5
6
7
8
9
Garage roof deck on BATTLEGROUNDS two-story home
10
11
12
13
14
15
16
17
18
19
Garage roof deck on ROS two-story home
20
As another example, both games contain a three-story residential building with masses, rooflines,
21
entrances, windows, and roof decks, of the same shapes, proportions, and layouts.
22
23
24
25
26
27
28
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2
3
4
5
6
7
8
9
Three-story residential building in BATTLEGROUNDS
10
11
12
13
14
15
16
17
18
19
Three-story residential building in ROS
20
21
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2
3
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5
6
7
8
9
Roof deck on three-story residential building in BATTLEGROUNDS
10
11
12
13
14
15
16
17
18
Roof deck on three-story residential building in ROS
19
20
As another example, each game contains an elongated single-story building with mass, windows,
21
roofline, entrance, doorway, steps, balconies, railings of the same shapes, proportions, and layouts.
22
23
24
25
26
27
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2
3
4
5
6
7
8
9
Single-story building in Battleground
10
11
12
13
14
15
16
17
18
19
Single-story building in ROS
20
As another example, each game contains an observation tower with a platform, roof, and staircase of
21
approximately the same shape and proportions.
22
23
24
25
26
27
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2
3
4
5
6
7
8
Observation towers in BATTLEGROUNDS
9
10
11
12
13
14
15
16
17
Observation tower in ROS
18
19
The foregoing are selected representative examples and not an exhaustive catalogue of the large
20
number of similarities in the BATTLEGROUNDS and ROS game play areas.
21
63.
Air Jump. Play begins in ROS with a transport airplane from which players jump,
22
freefall, and parachute into the play area. As in BATTLEGROUNDS, the route of the plane is
23
shown in a mini-map within the play screen, and players can choose to jump at any point. Both ROS
24
and BATTLEGROUNDS use similar types of vehicles, similar expressions of a satellite-view map
25
depicting various locations and their names, and similar expressions to indicate the user’s location
26
on the map. On information and belief, Defendants copied PUBG’s expressive depictions of an Air
27
28
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Jump where other depictions could have been used for the purpose of evoking the same introductory
2
experience felt by players of BATTLEGROUNDS.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Transport Airplane in BATTLEGROUNDS
20
21
22
23
24
25
26
27
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Transport Airplane in ROS
17
18
19
20
21
22
23
24
25
26
27
Airplane Route Map in PUBG
28
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2
3
4
5
6
7
8
Airplane Route Map in ROS
9
10
64.
Freefall and Parachuting. As in BATTLEGROUNDS, following the jump from the
11
airplane, a player can choose to freefall or parachute toward the ground. The depiction of freefall in
12
KO is strikingly similar to the depiction of freefall in BATTLEGROUNDS. Further, KO uses the
13
same depiction of a parachute as used in BATTLEGROUNDS. On information and belief,
14
Defendants copied PUBG’s expressive depictions of freefall and parachuting, where other depictions
15
could have been used, solely for the purpose of evoking the same introductory experience felt by
16
players of BATTLEGROUNDS.
17
18
19
20
21
22
23
24
25
Freefall in BATTLEGROUNDS
26
27
28
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2
3
4
5
6
7
Freefall in ROS
8
9
10
11
12
13
14
15
16
Parachuting in BATTLEGROUNDS
17
18
19
20
21
22
23
24
25
Parachuting in ROS
65.
Weapons. The firearms, melee weapons, and throwable weapons in ROS are
26
substantially similar to those in BATTLEGROUNDS. In general, and on information and belief,
27
each weapon in ROS corresponds to a weapon in BATTLEGROUNDS that is the same type of
28
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weapon, inflicts the same or a similar amount of damage per hit, has a similar appearance, has a
2
similar operation, has similar attachments, and has a similar name. Further, the assortment of
3
weapons and weapon types available in ROS are substantially similar to those in
4
BATTLEGROUNDS, as explained in further detail below.
5
66.
Firearms. The firearms in ROS are substantially similar to those in
6
BATTLEGROUNDS, having the same or similar type, appearance, and, on information and belief,
7
performance statistics (e.g., load capacity and damage inflicted per discharge). For example, the
8
“Tommy Gun” submachine gun in BATTLEGROUNDS and the “Thompson” submachine gun in
9
ROS have substantially similar appearances and performance statistics. Although weapons have
10
been used in prior games, on information and belief, Defendants have copied PUBG’s graphical,
11
statistical and audio expressions of the weapons identified below where other graphical, statistical
12
and audio expressions could have been used. For example, note the similarity of the grip, magazine
13
and the stock of both the BATTLEGROUNDS “M416” and the ROS “MA14” assault rifle.
14
15
16
17
18
19
“M416” Assault Rifle in BATTLEGROUNDS
20
21
22
23
24
25
26
“MA14” Assault Rifle in ROS
27
28
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As another example, the “Tommy Gun” submachine gun in BATTLEGROUNDS and the
2
“Thompson” submachine gun in ROS have substantially similar appearances and performance
3
statistics.
4
5
6
7
8
9
“Tommy Gun” Submachine Gun in BATTLEGROUNDS
10
11
12
13
14
“Thompson” Submachine Gun in ROS
15
As another example, the “AWM” sniper rifle in BATTLEGROUNDS and the “AWM” sniper rifle in
16
ROS have substantially similar appearances and performance statistics. Note the same color scheme
17
of the two rifles. Both rifles are available in different color schemes, but Defendants chose the color
18
scheme of their AWM rifle to closely mimic the appearance of the AWM rifle in
19
BATTLEGROUNDS.
20
21
22
23
24
“AWM” Sniper Rifle in BATTLEGROUNDS
25
26
27
28
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2
3
4
5
6
“AWM” Sniper Rifle in ROS, with scope and bipod attached
7
The foregoing are selected representative examples and not an exhaustive catalogue of the large
8
number of similarities.
9
67.
Attachments and Modifications for Firearms. The attachments and modifications
10
for firearms in ROS are substantially similar to those in BATTLEGROUNDS, having the same or
11
similar type, appearance, and on information and belief, performance statistics. For example, both
12
games offer muzzle attachments in the form of silencers/suppressors, flash hiders, compensators, and
13
a shotgun choke; both games offer an angled grip attachment and vertical grip attachment; both
14
games offer similar assortments of magazines and stocks, including “Extended” magazines,
15
“QuickDraw” magazines, and “Extended QuickDraw” magazines; and both games offer similar
16
assortment of scopes, including a “red dot sight” that is depicted similarly in both games. Selected
17
representative examples are shown below:
18
19
20
21
22
“Red Dot Sight” in BATTLEGROUNDS
23
24
25
26
27
“Red Dot Sight” in ROS
28
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2
3
4
5
6
Angled Foregrip and Vertical Foregrip in BATTLEGROUNDS
7
8
9
10
11
12
Triangle Grip and Vertical Foregrip in ROS
13
For example, note that the sniper rifle check pads in both games depict two adjustments in the exact
14
same position despite the fact that this type of cheek pad is highly uncommon. In fact, when
15
searching “sniper rifle cheek pad,” on Google, the only result depicting this style of cheek pad
16
references the cheek pad used in BATTLEGROUNDS.
17
18
19
20
https://www.google.com/search?safe=off&biw=943&bih=921&tbm=isch&sa=1&ei=YY2yWq3QJq
LajwSd7rDIAw&q=sniper+rifle+cheek+pad&oq=sniper+rifle+cheek+pad&gs_l=psyab.3...0.0.0.5996.0.0.0.0.0.0.0.0..0.0....0...1c..64.psy-ab..0.0.0....0.-JD66v_6sts:
21
22
23
24
25
26
Cheek Pad for Sniper Rifle in BATTLEGROUNDS
27
28
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2
3
4
5
6
Sniper Rifle Cheek Pad in ROS
7
8
9
10
11
12
13
Bullet Loops for Shotgun in BATTLEGROUNDS
14
15
16
17
18
19
Shotgun Bullet Loop in ROS
20
21
22
23
24
25
Extended Magazine for Submachine Guns in BATTLEGROUNDS
26
27
28
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2
3
4
5
Submachine Gun Extended Magazine for ROS
6
7
8
9
10
11
Suppressor, Compensator, and Flash Hider for Sniper Rifles in BATTLEGROUNDS
12
13
14
15
16
Silencer, Compensator, and Flash Hider for Sniper Rifles in ROS
17
The foregoing are selected representative examples and not an exhaustive catalogue of the large
18
number of similarities.
19
68.
Melee Weapons. The melee weapons in ROS are substantially similar to those in
20
BATTLEGROUNDS. Both games offer a frying pan and a crowbar that are depicted similarly and
21
operate similarly. The use of cookware as a melee weapon is highly uncommon in shooter type
22
games, and Defendants’ use of a frying pan with the same shape and properties as the frying pan
23
introduced in BATTLEGROUNDS was intended to misappropriate Plaintiff PUBG’s unique
24
expression
25
26
27
28
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2
3
4
5
6
7
8
Frying Pan and Crowbar in BATTLEGROUNDS
9
10
11
12
13
14
15
Frying Pan and Crowbar in ROS
16
17
Additionally, in ROS, a rubber chicken is available as a melee weapon that causes damage. Holding
18
the rubber chicken also enables the character to run faster. The use of a rubber chicken to illustrate
19
the form of this melee weapon is unnecessary because other objects could have been used to
20
illustrate the same functions. On information and belief, Defendants’ decision to include a rubber
21
chicken as a melee weapon in ROS was made for the sole purpose of evoking the iconic “Winner
22
Winner Chicken Dinner” emblem of BATTLEGROUNDS.
23
24
25
26
27
Rubber Chicken Melee Weapon in ROS
69.
Throwable Weapons. The throwable weapons in ROS also are substantially similar
28
61
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1
to those in BATTLEGROUNDS. Each game has four grenades: a frag grenade, a stun grenade, a
2
smoke grenade, and a Molotov cocktail. The grenades are depicted similarly, operate similarly, and,
3
upon information and belief, inflict the same level of damage in each game. For example, in both
4
BATTLEGROUNDS and ROS, the Molotov cocktail does not have a delayed explosion.
5
6
7
8
9
10
Fragmentation Grenade, Stun Grenade, Smoke Grenade, and Molotov Cocktail in
BATTLEGROUNDS
11
12
13
14
15
16
17
18
Frag Grenade, Stun Grenade, Smoke Grenade, and Molotov Cocktail in ROS
19
The grenades in ROS are depicted similarly to the grenades in BATTLEGROUNDS. The frag
20
grenade in each game is depicted as having a removable pin, a lever and a rounded body. The stun
21
and smoke grenades are each oblong cylinders with a pin and lever and have writing on the side of
22
the canister. On information and belief, Defendants copied PUBG’s expressive depictions of the
23
grenades identified above where other depictions could have been used. Additionally, ROS includes
24
an exploding chicken grenade, which is depicted as a metal chicken. It has a larger blast radius than
25
the frag grenade but deals the same amount of damage. The use of a chicken head to illustrate a
26
grenade variation is unnecessary, because other objects or images could have been used to illustrate
27
the same functions. On information and belief, Defendants’ decision to include an exploding
28
chicken as a throwable weapon in ROS was made for the sole purpose of evoking the iconic “Winner
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Winner Chicken Dinner” emblem of BATTLEGROUNDS.
2
3
4
5
6
7
8
9
70.
Armor. The armor in ROS is substantially similar to the armor in
BATTLEGROUNDS. Each game has three levels of helmets and three levels of body armor, and
10
these items are depicted similarly, operate similarly, and, on information and belief, provide the
11
same levels of damage reduction.
12
13
14
15
16
17
18
BATTLEGROUNDS Helmets providing good damage reduction (Level 1), better damage reduction
(Level 2), and best damage reduction (Level 3), respectively
19
20
21
22
23
ROS Helmets providing good damage reduction (Level 1), better damage reduction (Level 2), and
best damage reduction (Level 3), respectively
24
The different levels of helmets are expressed similarly across both games. For example, the “Level
25
1” helmet in both games is a motorcycle or scooter-style helmet which covers the top, back and sides
26
of the wearer’s head. The “Level 2” helmet in both games is a camouflaged military helmet and
27
covers the same areas of the wearer’s head as the “Level 1” helmet. Finally, the “Level 3” helmet in
28
both games resembles a special forces helmet covers all sides of the wearer’s head including the
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front and has a shiny black appearance, and both include a visor. On information and belief,
2
Defendants copied PUBG’s expressive depictions of the helmets identified above where other
3
depictions could have been used.
4
5
6
7
8
9
10
BATTLEGROUNDS Body Armor providing good damage reduction (Level 1), better damage
reduction (Level 2), and best damage reduction (Level 3), respectively
11
12
13
14
15
16
17
ROS Body Armor providing good damage reduction (Level 1), better damage reduction (Level 2),
and best damage reduction (Level 3), respectively
Additionally, both games provide a frying pan for use as armor, as discussed further below.
71.
Frying Pan. As explained above in paragraph 68, ROS provides a frying pan that can
18
be used both as a melee weapon and as armor, as in BATTLEGROUNDS. The frying pan in ROS is
19
designed with the same shape and characteristics as the frying pan in BATTLEGROUNDS. As with
20
the BATTLEGROUNDS frying pan, the ROS frying pan provides medium damage output when
21
used as a melee weapon and can deflect shots when in a character’s hand or on a character’s back.
22
The use of a frying pan to illustrate this item of weaponry and armor is unnecessary to the game,
23
because other objects could have been used to illustrate the same functions. On information and
24
belief, Defendants’ decision to include a frying pan as a melee weapon and armor item in ROS was
25
made for the sole purpose of evoking the iconic frying pan emblem of BATTLEGROUNDS.
26
27
28
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2
3
4
5
6
7
8
Frying pan wielded as melee weapon in BATTLEGROUNDS
9
10
11
12
13
14
Frying pan wielded as melee weapon in ROS
15
16
17
18
19
20
21
22
23
Frying pan worn as butt armor in BATTLEGROUNDS
24
25
26
27
28
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
Frying pan worn as butt armor in ROS
16
17
72.
Clothing and Other Wearable Equipment. The clothing and other items of
18
wearable equipment in ROS are substantially similar to those in BATTLEGROUNDS. Each game
19
has a similar assortment of such items, which are depicted similarly, operate similarly, and, on
20
information and belief, possess the same or similar statistics. For example, ROS offers three levels
21
of backpacks with increasing capacity, corresponding to those in BATTLEGROUNDS.
22
23
24
25
26
27
28
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2
3
4
5
6
7
8
BATTLEGROUNDS Backpacks providing good damage reduction (Level 1), better damage
reduction (Level 2), and best damage reduction (Level 3), respectively
9
10
11
12
13
ROS Backpacks providing good damage reduction (Level 1), better damage reduction (Level 2), and
best damage reduction (Level 3), respectively
14
The different levels of backpacks are expressed similarly across both games. For example, the
15
“Level 1” and “Level 2” backpacks in both games are similarly contoured. The “Level 3” backpacks
16
in both games are much rounder and noticeably distinct from other backpacks. On information and
17
belief, Defendants copied PUBG’s expressive depictions of the backpacks identified above where
18
other depictions could have been used. As another example, ROS offers a full-body “Ghillie Suit”
19
that camouflages a player like the full-body “Ghillie Suit” in BATTLEGROUNDS.
20
21
22
23
24
25
26
27
Ghillie Suit in BATTLEGROUNDS
28
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2
3
4
5
6
7
8
9
Ghillie Suit in ROS
10
11
12
13
14
15
16
17
Character wearing Ghille Suit in BATTLEGROUNDS
18
19
20
21
22
23
24
25
26
27
Character wearing Ghille Suit in ROS
28
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As another example, ROS offers various types of pants, shirts, shoes, jackets, hats, gloves, masks,
2
glasses, goggles that can be worn by characters, all of which correspond to similar items in
3
BATTLEGROUNDS. This type of clothing allows characters to be depicted in everyday outfits
4
rather than in traditional combat gear. Whereas other video games use only traditional military
5
uniforms, the availability of everyday street clothing as well as military gear in both
6
BATTLEGROUNDS and ROS furthers each game’s conceit of different types of people being
7
forced to fight one another rather than the traditional video game use of traditional soldiers in a
8
warzone.
9
10
11
12
13
14
15
16
17
Examples of clothing in BATTLEGROUNDS
18
19
20
21
22
23
24
25
26
27
28
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2
3
4
5
6
7
8
Examples of clothing in ROS
9
10
11
12
13
14
15
16
17
18
19
20
The foregoing are selected representative examples and not an exhaustive catalogue of the large
number of similarities.
73.
Character Configuration. The configuration of characters in ROS is substantially
similar to that of characters in BATTLEGROUNDS. The organization and capacity of slots for
holding items on a character’s body in ROS are identical to those in BATTLEGROUNDS, exception
that the ROS configuration has one less waist slot. The significance of this variation is very minor,
however, because it is largely negated by another adjustment, i.e., grenades occupy a waist slot in
BATTLEGROUNDS but come equipped (without occupying any configurable slot) in ROS.
Additionally, in ROS a frying pan may be placed over a character’s butt by assigning it to the fist
slot, just as in BATTLEGROUNDS.
21
22
23
24
25
26
27
28
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2
3
4
5
6
7
8
9
Character Configuration in BATTLEGROUNDS
10
11
12
13
14
15
16
17
Character Configuration in ROS
18
19
74.
Consumables. The consumable resources in ROS are substantially similar to those in
20
BATTLEGROUNDS. Each game has a similar assortment of such items, which are depicted
21
similarly, operate similarly, and, on information and belief, possess the same or similar statistics.
22
Every consumable item in ROS has a direct counterpart in BATTLEGROUNDS, and
23
BATTLEGROUNDS has only one consumable item (a painkiller depicted as a prescription pill
24
bottle) that lacks a direct counterpart in ROS. For example, each game offers a drink that boosts
25
health and is depicted as a can of everyday beverage which everyday logic suggests would be unable
26
to heal wounds but is used instead in both games to comically provide a non-traditional method of
27
restoring health. The shared use of this non-traditional health boost demonstrates that Defendants
28
copied PUBG’s expressive depiction of a health boost in order to evoke the same feeling and
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experience felt by players in BATTLEGROUNDS.
2
3
4
5
6
“Energy Drink” in BATTLEGROUNDS
7
8
9
10
“Sports Drink” in ROS
11
12
13
As another example, each game offers a bandage, a first aid kit, and a medical kit that may be used
to restore health following injury.
14
15
16
17
18
19
Bandage, First Aid Kit, and Med Kit in BATTLEGROUNDS
20
21
22
23
Bandage, First Aid Kit, and Med Kit in ROS
24
As another example, both games offer a syringe that fills the player’s boost bar and can be found
25
26
only in air-dropped supply boxes.
27
28
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2
3
Adrenaline Syringe in BATTLEGROUNDS
4
5
6
7
8
Cardio Tonic Syringe in ROS
9
10
As another example, both games offer a fuel container that can be used to refuel vehicles.
11
12
13
14
15
Gas Can in BATTLEGROUNDS
16
17
18
19
Fuel Barrel in ROS
20
21
The foregoing are selected representative examples and not an exhaustive catalogue of the large
22
number of similarities.
23
75.
Vehicles. The vehicles in ROS are substantially similar to those in
24
BATTLEGROUNDS. Each game has a similar assortment of vehicles, which are depicted similarly
25
and, on information and belief, possess the same or similar statistics. For example, both games offer
26
a motorcycle.
27
28
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2
3
4
5
6
7
Motorcycles in BATTLEGROUNDS
8
9
10
11
12
13
14
Motorcycle in ROS
15
16
As a further example, both games use Jeeps that share the same basic structure, including open-air
17
seating and metal bars at the front of the car that can be used as weapons against pedestrian
18
opponents.
19
20
21
22
23
24
25
26
27
UAZ in BATTLEGROUNDS
28
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2
3
4
5
6
7
Jeep in ROS
8
9
10
As a further example, both games also use sedans that are farcically unequipped for and misplaced in
the battlefields depicted in each game.
11
12
13
14
15
16
17
18
Vehicle in BATTLEGROUNDS with vehicle boost bar depicted under vehicle fuel bar
19
20
21
22
23
24
25
26
27
Vehicle in ROS with vehicle boost bar depicted under vehicle fuel bar
28
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The foregoing are selected representative examples and not an exhaustive catalogue of the large
2
number of similarities.
3
76.
Air-Dropped Supply Boxes. ROS features air-dropped supply boxes that are
4
substantially similar to those in BATTLEGROUNDS. As in BATTLEGROUNDS, in ROS, the
5
supply boxes are dropped from an aircraft, which can be heard by the players before the supply
6
boxes drop down. The supply boxes in ROS are depicted in a different color combination than those
7
in BATTLEGROUNDS, but the ROS supply boxes mimic their BATTLEGROUNDS counterparts
8
in all other respects. For example, the supply boxes in both games are covered in tarps and let out
9
visually dramatic plumes of red smoke after landing. On information and belief, Defendants copied
10
PUBG’s expressive depictions of the air-drop area where other depictions could have been used for
11
the purpose of evoking the same iconic air-drop experience depicted in BATTLEGROUNDS.
12
13
14
15
16
17
18
19
20
21
22
Aircraft That Drops Supply Boxes in BATTLEGROUNDS
23
24
25
26
27
28
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2
3
4
5
6
7
8
9
10
Aircraft That Drops Supply Boxes in ROS
11
12
13
14
15
16
17
18
19
20
Supply Box With Red Smoke After Landing in BATTLEGROUNDS
21
22
23
24
25
26
27
28
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2
3
4
5
6
7
8
9
Supply Box With Red Smoke After Landing in ROS
10
11
12
13
14
15
16
17
Supply Box in BATTLEGROUNDS
18
19
20
21
22
23
24
25
26
27
Supply Box in ROS
28
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77.
Bombardment Zone. ROS includes a bombardment zone feature that is substantially
2
similar to the bombardment zone feature in BATTLEGROUNDS. As in BATTLEGROUNDS, the
3
bombardment zone in ROS periodically spawns and is depicted by a red-shaded area superimposed
4
on the miniature play area map within the play screen. As in BATTLEGROUNDS, players in ROS
5
receive a warning message about the bombardment zone, and during bombardments interior spaces
6
away from windows within buildings are safe.
7
8
9
10
11
12
13
14
15
Bombardment Zone indicated by red shading on maps in BATTLEGROUNDS
16
17
18
19
20
21
22
23
24
Bombardment Zone indicated by red shading on maps in ROS
25
26
27
28
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78.
Shrinking Gameplay Area. ROS includes a shrinking gameplay area feature that is
2
substantially similar to the shrinking gameplay area feature in BATTLEGROUNDS. As in
3
BATTLEGROUNDS, the shrinking gameplay area in ROS is depicted by a white circle on the
4
gameplay area map. In both games, the circle shrinks in iterations, with each iteration encompassing
5
one-third of the previous area. Both games also display a timer that warns players when the next
6
shrink will occur.
7
8
9
10
11
12
13
14
15
16
17
Shrinking circle and timer depicted in BATTLEGROUNDS
18
19
20
21
22
23
24
25
26
27
Mini-map showing shrinking blue circle indicating restricted area in BATTLEGROUNDS
28
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2
3
4
5
6
7
8
Shrinking circle and timer depicted in ROS
9
10
79.
“Winner Winner Chicken Dinner.” On information and belief, when a player
11
emerges victorious at the end of ROS, his or her screen displays “WINNER WINNER CHICKEN
12
DINNER,” the same catchphrase that was creatively selected by PUBG to congratulate winners of
13
BATTLEGROUNDS and that has become emblematic of BATTLEGROUNDS. The phrase is
14
displayed in all capital letters in both games.
15
16
17
18
19
20
21
22
Sample victory screen display in BATTLEGROUNDS
23
24
25
26
27
28
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2
3
4
5
6
7
8
Sample victory screen display in ROS
9
Additionally, in ROS, the final screen of the game for all players displays the bust of a chicken. The
10
chicken is depicted in the lower-right area of the screen, both for the winner of the game (as depicted
11
above) and for the other players (as depicted below). On information and belief, Defendants’
12
decision to include chicken imagery in the concluding screen display of ROS was made for the sole
13
purpose of evoking the iconic “Winner Winner Chicken Dinner” concluding emblem of
14
BATTLEGROUNDS.
15
16
17
18
19
20
21
22
Sample game conclusion screen for player who did not win in ROS
23
24
25
26
27
28
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80.
Advertising, Marketing and Promotional Materials. On information and belief,
2
Defendants have advertised, marketed and/or promoted ROS in a manner intended to confuse
3
consumers into believing that ROS is affiliated with or otherwise related to BATTLEGROUNDS.
4
These actions are evidenced by the relationship in the Android Google Play Store and Apple App
5
Store between ROS and BATTLEGROUNDS, the similarities between the appearance and
6
description of ROS and BATTLEGROUNDS and the use of images unique to BATTLEGROUNDS
7
on the ROS Facebook page. For example, within the Google Play Store, ROS appears as the third
8
result when searching for “PUBG Game” and is promoted using vehicles similar to those in
9
BATTLEGROUNDS.
10
11
12
13
14
15
16
17
18
19
20
Google Play Store Results for Term “PUBG Game”
21
22
23
24
25
26
27
28
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2
3
4
5
6
7
8
9
10
11
12
13
Use of Jeep in Google Play Store Description of ROS
14
Further, in the Apple App Store ROS appears as the third result when searching for “PUBG” and is
15
promoted using depictions of parachutes, vehicles and supply boxes used in BATTLEGROUNDS.
16
17
18
19
20
21
22
23
24
25
26
27
28
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Apple App Store Results for Term “PUBG Game”
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Use of Parachutes, Supply Box with Red Smoke and Jeep in Apple App Store Description of ROS
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Defendants have also advertised, marketed and promoted ROS on Facebook using imagery and
2
expressions reminiscent of those created for BATTLEGROUNDS. For example, the ROS Facebook
3
page advertises vehicles, supply boxes, locations and weapons unique to BATTLEGROUNDS.
4
Further, the ROS Facebook page uses imagery and advertisements that evoke the “Winner Winner
5
Chicken Dinner” messaging used in BATTLEGROUNDS.
6
7
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Vehicles and Supply Boxes in ROS Advertising
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Frying Pan in ROS Advertising
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Evocations of “Winner Winner Chicken Dinner” in ROS Advertising
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Defendants have also advertised ROS using vehicles and locations that do not appear in ROS but do
2
appear in BATTLEGROUNDS (ex. a two-seater buggy, a four-propeller military aircraft, power
3
plant with a single cooling tower).
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5
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Two-Seater Buggy and Power Plant with Single Cooling Tower in ROS Advertising
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Two-Seater Buggy in BATTLEGROUNDS
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Power Plant with Two Cooling Towers in ROS
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Power Plant with One Cooling Tower in BATTLEGROUNDS
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Four-Propeller Military Aircraft in ROS Advertising
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Copying in Knives Out Game
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81.
Knives Out: Knives Out (“KO”) is a video game for mobile devices that was made
23
and released by Defendants. On information and belief, KO was released in the United States on or
24
about November 3, 2017.
25
26
27
28
82.
On information and belief, Defendants created KO by copying BATTLEGROUNDS
and with the intention of creating a version of BATTLEGROUNDS for mobile devices.
83.
On information and belief, Defendants intended to create consumer confusion as to
the source of KO and intended to cause consumers to believe, incorrectly, that KO had been
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developed by PUBG. On information and belief, Defendants intended to misappropriate consumer
2
goodwill toward PUBG in order to market and gain economic benefit from KO.
3
84.
On information and belief, there has in fact been confusion in the marketplace as to
4
the source and origin of KO, with consumers believing, incorrectly, that KO was developed by
5
PUBG. For example, KO has been referred to in the marketplace as “Mobile PUBG” or “PUBG
6
Mobile”:
7
8
9
10
11
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19
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22
23
Sampling of player videos available on YouTube.com
(https://www.youtube.com/results?search_query=pubg+knives+out)
24
25
26
85.
On information and belief, commentators in the industry have characterized KO as a
27
copy, or “knockoff” of BATTLEGROUNDS. For example, one commentator called KO “a damn
28
near carbon copy” of BATTLEGROUNDS that “mimic[s]” BATTLEGROUNDS “to an
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uncomfortable degree.” http://toucharcade.com/2017/11/14/playerunknowns-battlegrounds-mobile-
2
knockoff-knives-out/. Other commentators have noted that “NetEase’s strategy of quickly launching
3
multiple PUBG clones appears to be paying off.”
4
http://www.pocketgamer.biz/asia/news/67212/knives-out-100-million-downloads/; see also
5
http://www.droidgamers.com/2017/11/24/pubg-knives-netease-android/ (“Just when you thought
6
you had enough Player Unknown’s Battlegrounds mobile clones by NetEase, you get another.
7
Knives Out is out now on Google Play, and it looks remarkably similar to last week’s Rules of
8
Survival.”).
9
86.
On information and belief, the KO app can be downloaded to a mobile device free of
10
charge, and the KO game can be played free of charge. On information and belief, Defendants have
11
released KO into the marketplace at or below cost for the purpose of gaining market share before
12
PUBG release BATTLEGROUNDS for mobile devices.
13
14
15
16
17
87.
KO contains many elements that are substantially similar to copyrightable elements of
creative audiovisual expression in BATTLEGROUNDS, including at least the following.
88.
Total Look and Feel. The overall look, feel, and audiovisual style of KO closely
mimic the stylized realism of BATTLEGROUNDS.
Knives Out
BATTLEGROUNDS
18
19
20
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22
23
24
25
26
27
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89.
Overall Gameplay. The overall look and feel of gameplay in KO very closely
14
matches that of BATTLEGROUNDS. For example, the narrative arc of the game; the audio and
15
visual representations of movement, shooting, and healing; and the battle formats presented (e.g.,
16
player versus everyone and small teams of five players versus everyone, with 100 players per game)
17
all correspond to those of BATTLEGROUNDS.
18
90.
Pre-play Area. As in BATTLEGROUNDS, the KO audiovisual experience begins
19
with a pre-play area where players can meet each other and try out weapons while waiting for
20
enough players to join. While prior games have used pre-play screens and areas, the expressive
21
depiction of a pre-play area in BATTLEGROUNDS, which encourages players to interact with
22
another, use weapons, and explore gameplay mechanics is unique. On information and belief,
23
Defendants copied PUBG’s expressive depictions of the pre-play area where other depictions could
24
have been used for the purpose of evoking the same pre-play experience depicted in
25
BATTLEGROUNDS.
26
27
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Pre-play area in KO
17
91.
Play Area Map. Like BATTLEGROUNDS, KO provides a map defining the area of
18
play, and the KO map is substantially similar to the BATTLEGROUNDS map. The
19
BATTLEGROUNDS map and KO map each comprises a square-ish mass of land with primary and
20
secondary islands, a major waterway, and bridges. Both maps feature mountainous topography
21
which is depicted as if taken using a reconnaissance satellite, yellow gridlines, yellow featured
22
location indicators and white lettered descriptions of those features areas. Although maps have been
23
used in prior games, the depiction of the map in KO is strikingly similar to the depiction of the map
24
in BATTLEGROUNDS. On information and belief, Defendants copied PUBG’s expressive
25
depiction of the map where another depiction could have been used.
26
27
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BATTLEGROUNDS Play Area Map
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KO Play Area Map
22
23
92.
Scenes and Locations. Many of the locations, structures, landscapes, and other
24
features within the KO play area closely correspond to those within the BATTLEGROUNDS play
25
area. For example, the BATTLEGROUNDS play area and the KO play area each contain at least
26
areas containing ruins, a port with shipping containers, a power plant, a warehouse area, and a
27
wetland area. These areas in KO are strikingly similar to those in BATTLEGROUNDS. On
28
information and belief, Defendants copied PUBG’s expressive depictions of the scenes and locations
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identified below where other depictions could have been used for the purpose of evoking the same
2
gameplay experience depicted in BATTLEGROUNDS.
3
Knives Out
BATTLEGROUNDS
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8
The foregoing are selected representative examples and not an exhaustive catalogue of the large
9
number of similarities.
10
93.
Buildings. The KO play area contains numerous buildings that are substantially
11
similar to buildings in BATTLEGROUNDS. Although buildings have been used in prior games, the
12
facades and layouts of the buildings in KO are strikingly similar to those in BATTLEGROUNDS.
13
On information and belief, Defendants copied PUBG’s expressive depictions of the buildings
14
identified below where other depictions could have been used for the purpose of evoking the same
15
gameplay experience depicted in BATTLEGROUNDS. For example, each game contains a two-
16
story hexagonal tower with stairs, windows, rooflines, and overall structure of the same shapes,
17
proportions, and layouts.
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19
20
21
22
23
24
25
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Two-story hexagonal tower in BATTLEGROUNDS
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28
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8
9
Two-story hexagonal tower in KO
As another example, each game contains a two-home cluster in which the homes’ masses, windows,
10
doors, rooflines, balconies, patios, and overall structure are the same shapes, proportions, and
11
layouts in both games.
12
13
14
15
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17
18
19
Pair of homes in BATTLEGROUNDS
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Pair of homes in KO
As another example, each game contains a two-story home with a garage, garage roof deck, and
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masses of the same shapes, proportions, and layouts.
2
3
4
5
6
7
8
Two-story home in BATTLEGROUNDS
9
10
11
12
13
14
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Two-story home in KO
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22
23
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Garage roof deck on two-story home in BATTLEGROUNDS
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Garage roof deck on two-story home in KO
8
9
As another example, each game contains a small, freestanding, single-story angular structure with a
10
tiled roof, a single door, and a row of vertically short, horizontally elongated windows that extends
11
around all the walls at approximately eye-level.
12
13
14
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18
Exterior of structure with eye-level windows in BATTLEGROUNDS
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Exterior of structures with eye-level windows in KO
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Interior of structure with eye-level windows in BATTLEGROUNDS
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Interior of structure with eye-level windows in KO
25
26
As another example, each game contains a three-story residential building with masses, rooflines,
27
entrances, windows, and roof decks, of the same shapes, proportions, and layouts, as well as similar
28
façades and staircases.
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Three-story residential building in BATTLEGROUNDS
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Three-story residential building in KO
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Roof deck on three-story residential building in BATTLEGROUNDS
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Roof deck on three-story residential building in KO
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Staircase in three-story residential building in BATTLEGROUNDS
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22
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Staircase in three-story residential building in KO
24
As another example, each game contains an elongated single-story building with mass, windows,
25
entrances, and steps of similar shapes, proportions, and layouts. Further, both contain a second door
26
on the left side of the building.
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28
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Single-story building in BATTLEGROUNDS
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9
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Single-story building in KO
16
Further, both houses contain vacated and rundown interiors with wooden floors and a bathroom
17
adjacent to the front door.
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22
23
24
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Interior of single-story building in BATTLEGROUNDS
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27
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Interior of single-story building in KO
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9
10
As another example, each game contains a plain rectangular garage with smooth façade where a
four-passenger vehicle is respawned.
11
12
13
14
15
16
Rectangular garage in BATTLEGROUNDS
17
18
19
20
21
22
Rectangular garage in KO
23
24
As another example, each game contains a light brown warehouse with a textured façade, gable roof,
25
and triangular pediment above the entrance.
26
27
28
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Warehouse in BATTLEGROUNDS
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9
10
11
12
13
14
15
Warehouse in KO
16
Further, both warehouses contains wooden crates stacked along the walls and in the middle of the
17
room.
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19
20
21
22
23
24
Wooden crates in warehouse in BATTLEGROUNDS
25
26
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Wooden crates in warehouse in KO
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9
10
11
The foregoing are selected representative examples and not an exhaustive catalogue of the large
number of similarities.
94.
Air Jump. Play begins in KO with a transport aircraft from which players jump,
12
freefall, and parachute into the play area. Similar to BATTLEGROUNDS, the route of the aircraft is
13
shown in a mini-map, and players can choose to jump at any point. Both KO and
14
BATTLEGROUNDS use similar types of vehicles, similar expressions of a satellite-view map
15
depicting yellow gridlines as well as various locations and their names, and similar expressions to
16
indicate the user’s location on the map. On information and belief, Defendants, having recognized
17
the sheer volume of misappropriation in KO, made a minor change and replaced the originally used
18
military-style transport airplane with a military-style transport helicopter. On information and belief,
19
Defendants copied PUBG’s expressive depictions of an Air Jump where other depictions could have
20
been used.
21
22
23
24
25
26
27
28
Transport Aircraft in BATTLEGROUNDS
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8
Original Transport Aircraft in KO
9
10
11
12
13
14
15
16
Modified Transport Aircraft in KO
17
18
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2
3
4
5
6
7
8
9
10
11
12
13
Aircraft Route Map in PUBG
14
15
16
17
18
19
20
21
22
23
24
25
Airplane Route Map in KO, with location of aircraft shown by circular symbol “
of travel shown by arrow symbol “ ”
95.
” and direction
Freefall and Parachuting. As in BATTLEGROUNDS, following the jump from the
26
aircraft, a player can choose to freefall or parachute toward the ground. The depiction of freefall in
27
KO is strikingly similar to the depiction of freefall in BATTLEGROUNDS. Further, KO uses the
28
same depiction of a parachute as used in BATTLEGROUNDS. On information and belief,
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Defendants copied PUBG’s expressive depictions of freefall and parachuting, where other depictions
2
could have been used, solely for the purpose of evoking the same introductory experience felt by
3
players of BATTLEGROUNDS.
4
5
6
7
8
9
10
11
Freefall in BATTLEGROUNDS
12
13
14
15
16
17
18
Original Freefall in KO
19
20
21
22
23
24
25
Modified Freefall in KO
26
27
28
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8
Parachuting in BATTLEGROUNDS
9
10
11
12
13
14
15
16
Parachuting in KO
17
18
96.
Weapons. The firearms, melee weapons, and throwable weapons in KO are
19
substantially similar to those in BATTLEGROUNDS. In general, and on information and belief,
20
each weapon in KO corresponds to a weapon in BATTLEGROUNDS that is the same type of
21
weapon, inflicts the same or a similar amount of damage per hit, has a similar appearance, has a
22
similar operation, has similar attachments, and has a similar name. Further, the assortment of
23
weapons and weapon types available in KO are substantially similar to those in
24
BATTLEGROUNDS, as explained in further detail below.
25
97.
Firearms. The firearms in KO are substantially similar to those in
26
BATTLEGROUNDS, having the same or similar type, appearance, and, on information and belief,
27
performance statistics (e.g., load capacity and damage inflicted per discharge). For example, the
28
AKM assault rifle in BATTLEGROUNDS and the AK-47 assault rifle in KO have substantially
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similar appearances and performance statistics. Although weapons have been used in prior games,
2
on information and belief, Defendants have copied PUBG’s graphical, statistical and audio
3
expressions of the weapons identified below where other graphical, statistical and audio expressions
4
could have been used. For example, note the similarity of the wood grain pattern on the stock, fore
5
grip and handles of both AK-47s.
6
7
8
9
10
11
AKM assault rifle in BATTLEGROUNDS
12
13
14
15
16
17
18
19
20
AK-47 assault rifle in KO
21
As another example, the SCAR-L assault rifle in BATTLEGROUNDS and the S-ACR assault rifle
22
in KO have substantially similar appearances and performance statistics. Note the same color
23
scheme of the two rifles. Both rifles are available in different color schemes, but Defendants chose
24
the color scheme of their S-ACR rifle to closely mimic the appearance of the SCAR-L rifle in
25
BATTLEGROUNDS.
26
27
28
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2
3
4
5
6
SCAR-L assault rifle in BATTLEGROUNDS
7
8
9
10
11
12
13
14
15
16
17
18
S-ACR assault rifle in KO
As another example, the M16A4 assault rifle in BATTLEGROUNDS and the M4A1 assault rifle in
KO have substantially similar appearances and performance statistics.
19
20
21
22
23
24
25
“M416” Assault Rifle in BATTLEGROUNDS
26
27
28
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9
M4A1 assault rifle in KO
10
As another example, the UMP9 submachine gun in BATTLEGROUNDS and the MP5 submachine
11
gun in KO have substantially similar appearances and performance statistics.
12
13
14
15
16
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UMP9 submachine gun in BATTLEGROUNDS
18
19
20
21
22
23
24
25
26
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MP5 submachine gun in KO
28
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As another example, the Micro Uzi submachine gun in BATTLEGROUNDS and the Uzi
2
submachine gun in KO have substantially similar appearances and performance statistics.
3
4
5
6
7
Micro Uzi submachine gun in BATTLEGROUNDS
8
9
10
11
12
13
14
15
16
17
18
19
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Uzi submachine gun in KO
21
As another example, the Vector submachine gun in BATTLEGROUNDS and the MK5 submachine
22
gun in KO have substantially similar appearances and performance statistics.
23
24
25
26
27
28
Vector submachine gun in BATTLEGROUNDS
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2
3
4
5
6
7
8
MK5 submachine gun in KO
9
As another example, the M24 sniper rifle in BATTLEGROUNDS and the M24 sniper rifle in KO
10
have substantially similar appearances and performance statistics. In particular, both depictions of
11
this rifle share the same stock with an extended recoil pad.
12
13
14
15
M24 sniper rifle in BATTLEGROUNDS
16
17
18
19
20
21
22
23
24
M24 sniper rifle in KO
25
As another example, the AWM sniper rifle in BATTLEGROUNDS and the AWM sniper rifle in KO
26
have substantially similar appearances and performance statistics. Note the use of the same color
27
scheme in the KO version, despite the fact that the AWM rifle is available in different color
28
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schemes.
2
3
4
5
6
7
AWM sniper rifle in BATTLEGROUNDS
8
9
10
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AWM sniper rifle in KO
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24
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2
3
4
Mauser sniper rifle in BATTLEGROUNDS
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6
7
8
9
10
11
12
13
14
15
Mauser sniper rifle in KO
16
17
The foregoing are selected representative examples and not an exhaustive catalogue of the large
18
number of similarities.
19
98.
Attachments and Modifications for Firearms. The attachments and modifications
20
for firearms in KO are substantially similar to those in BATTLEGROUNDS, having the same or
21
similar type, appearance, and, on information and belief, performance statistics. For example, both
22
games offer muzzle attachments in the form of silencers/suppressors, compensators, and flash hiders;
23
both games offer vertical and horizontal grip attachments of similar types; both games offer similar
24
assortments of magazines and stocks, such as quick-draw and extended magazines; and both games
25
offer similar assortments of scopes, including a “holographic sight” that is depicted similarly in both
26
games. Selected representative examples are shown below.
27
28
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2
3
4
5
“Red Dot Sight” in BATTLEGROUNDS
6
7
8
9
“Holographic Sight” in Knives Out
10
11
12
13
Stock in BATTLEGROUNDS
14
15
16
17
Stock in Knives Out
18
19
20
21
22
Extended Magazine for Submachine Guns in BATTLEGROUNDS
23
24
25
26
27
Submachine Gun Extended Magazine for Knives Out
28
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2
3
4
5
6
Suppressor, Compensator, and Flash Hider for Sniper Rifles in BATTLEGROUNDS
7
8
9
Suppressors, Compensator, and Flash Hider for Sniper Rifles in Knives Out
10
11
The foregoing are selected representative examples and not an exhaustive catalogue of the large
12
number of similarities.
13
99.
Melee Weapons. The melee weapons in KO are substantially similar to those in
14
BATTLEGROUNDS. For example, both games offer cookware in the shape of a pan. The use of
15
cookware as a melee weapon is highly uncommon in shooter type games, and Defendants’ use of a
16
pot lid with the same shape and properties as the frying pan introduced in BATTLEGROUNDS was
17
intended to misappropriate Plaintiff PUBG’s unique expression.
18
19
20
21
22
23
24
25
26
27
28
Frying Pan in BATTLEGROUNDS
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2
3
4
5
6
7
8
9
Pot Cover in KO
10
11
100.
Throwable Weapons. The throwable weapons in KO also are substantially similar
12
to those in BATTLEGROUNDS. Each game has at least three grenades: a frag grenade, a stun
13
grenade, and a smoke grenade. The grenades in KO are depicted similarly to the frag grenade in
14
BATTLEGROUNDS. The BATTLEGROUNDS frag grenade and the frag grenade used in KO are
15
each depicted as having a removable pin, a lever and a rounded body with two lines of writing. On
16
information and belief, Defendants copied PUBG’s expressive depictions of the grenades identified
17
above where other depictions could have been used.
18
19
20
21
22
Frag Grenade in BATTLEGROUNDS
23
24
25
26
27
Frag Grenade an in KO
28
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101.
Armor. The armor in KO is substantially similar to the armor in
2
BATTLEGROUNDS. Each game has three levels of helmets and three levels of body armor, and
3
these items are depicted similarly, operate similarly, and, on information and belief, provide the
4
same levels of damage reduction.
5
6
7
8
9
10
11
BATTLEGROUNDS Helmets providing good damage reduction (Level 1), better damage reduction
(Level 2), and best damage reduction (Level 3), respectively
12
13
14
15
16
17
18
19
20
21
22
23
24
KO Helmets providing good damage reduction (Level 1), better damage reduction (Level 2), and
best damage reduction (Level 3), respectively
The different levels of helmets are expressed similarly across both games. For example, the “Level
1” helmet in both games is a motorcycle or scooter-style helmet which covers the top, back and sides
of the wearer’s head. The “Level 2” helmet in both games is a camouflaged military helmet and
covers the same areas of the wearer’s head as the “Level 1” helmet. Finally, the “Level 3” helmet in
both games resembles a special forces helmet covers all sides of the wearer’s head including the
front and has a shiny black appearance, and both include a visor. On information and belief,
Defendants copied PUBG’s expressive depictions of the helmets identified above where other
depictions could have been used.
25
26
27
28
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2
3
4
5
6
7
8
9
BATTLEGROUNDS Body Armor providing good damage reduction (Level 1), better damage
reduction (Level 2), and best damage reduction (Level 3), respectively
10
11
12
13
KO Body Armor providing good damage reduction (Level 1), better damage reduction (Level 2), and
best damage reduction (Level 3), respectively
14
15
The different levels of armor are expressed similarly across both games. For example, the “Level 1”
16
armor in both games is a snow-camouflaged vest with thin straps across the wearer’s shoulders, back
17
and chest. The “Level 2” armor in both games is a thicker vest, with thicker straps and pouches on
18
the chest and waistline. Finally, the “Level 3” armor in both games has metal clasps on the wearer’s
19
shoulders and contains segmented sections across the chest of the wearer. On information and
20
belief, Defendants copied PUBG’s expressive depictions of the armor identified above where other
21
depictions could have been used. In addition to the armor described above, both games also provide
22
a frying pan-type item for use as armor, as discussed further below.
23
102.
Frying Pan. As explained above in paragraph 99, KO provides a pot lid that can be
24
used both as a melee weapon and as armor, like the frying pan in BATTLEGROUNDS. The pot lid
25
in KO is designed with the same shape and characteristics as the frying pan in BATTLEGROUNDS.
26
As with the BATTLEGROUNDS frying pan, the pot lid provides medium damage output when used
27
as a melee weapon and can deflect shots when in a character’s hand or on a character’s back (butt),
28
analogous to the frying pan in BATTLEGROUNDS. On information and belief, Defendants’
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decision to include a pot lid as a melee weapon and armor item in KO was made for the sole purpose
2
of evoking the iconic frying pan emblem of BATTLEGROUNDS.
3
4
5
6
7
8
9
10
Frying pan in BATTLEGROUNDS
11
12
13
14
15
16
17
18
19
20
Pot cover in KO
21
22
23
24
25
26
27
28
Frying pan wielded as melee weapon in BATTLEGROUNDS
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2
3
4
5
Pot cover wielded as melee weapon in KO
6
7
8
9
10
11
12
13
Frying pan worn as butt armor in BATTLEGROUNDS
14
15
16
17
18
19
20
21
22
Pot cover worn as butt armor in KO
23
24
103.
Clothing and Other Wearable Equipment. The clothing and other items of
25
wearable equipment in KO are substantially similar to those in BATTLEGROUNDS. Each game
26
has a similar assortment of such items, which are depicted similarly, operate similarly, and, on
27
information and belief, possess the same or similar statistics. For example, KS offers three levels of
28
backpacks with increasing capacity, corresponding to those in BATTLEGROUNDS.
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2
3
4
5
6
7
8
9
BATTLEGROUNDS Backpacks providing good damage reduction (Level 1), better damage
reduction (Level 2), and best damage reduction (Level 3), respectively
10
11
12
13
KO Backpacks providing good damage reduction (Level 1), better damage reduction (Level 2), and
best damage reduction (Level 3), respectively
14
15
The different levels of backpacks are expressed similarly across both games. For example, the
16
“Level 1” backpacks in both games are tan-colored and pear-shaped. The “Level 2” backpacks are a
17
both green and similarly pear shaped. Finally, the “Level 3” backpacks in both games are much
18
rounder and are camouflaged. On information and belief, Defendants copied PUBG’s expressive
19
depictions of the backpacks identified above where other depictions could have been used.
20
As another example, KO offers a full-body “Ghillie Suit” that camouflages a player like the full-
21
body “Ghillie Suit” in BATTLEGROUNDS.
22
23
24
25
26
27
28
“Ghillie Suit” in BATTLEGROUNDS
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3
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6
7
8
9
10
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12
13
Character wearing Ghillie Suit in BATTLEGROUNDS
14
15
16
17
18
19
20
21
22
Character wearing green Ghillie Suit in KO
23
As another example, KO offers various types of pants, shirts, shoes, jackets, hats, gloves, masks,
24
25
glasses, goggles that can be worn by characters, which correspond to similar items in
26
BATTLEGROUNDS. This type of clothing allows characters to be depicted in everyday outfits
27
rather than in traditional combat gear. Whereas other video games use only traditional military
28
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uniforms, the availability of everyday street clothing as well as military gear in both
2
BATTLEGROUNDS and KO furthers each game’s conceit of different types of people being forced
3
to fight one another rather than the traditional video game use of traditional soldiers in a warzone.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Clothing in BATTLEGROUNDS
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19
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21
22
23
24
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26
Clothing in KO
The foregoing are selected representative examples and not an exhaustive catalogue of the large
number of similarities.
104.
Character Configuration. The configuration of characters in KO is substantially
similar to that of characters in BATTLEGROUNDS. Each game provides two shoulder slots and
two waist slots that may hold items. Additionally, in KO, a frying pan or pot lid may be placed over
a character’s butt by assigning it to a specific slot, just as in BATTLEGROUNDS.
27
28
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2
3
4
5
6
7
8
9
10
Character Configuration in BATTLEGROUNDS
11
12
13
14
15
16
17
18
19
20
Character Configuration in KO
105.
Consumables. The consumable resources in KO are substantially similar to those in
21
BATTLEGROUNDS. Each game has a similar assortment of such items, which are depicted
22
similarly, operate similarly, and, on information and belief, possess the same or similar performance
23
statistics. Every consumable item in KS has a direct counterpart in BATTLEGROUNDS, and
24
BATTLEGROUNDS has only two consumable items (a painkiller depicted as a prescription pill
25
bottle and a syringe) that lack a direct counterpart in KO. For example, each game offers a drink that
26
boosts health and is depicted as an everyday beverage which everyday logic suggests would be
27
unable to heal wounds but is used instead in both games to comically provide a non-traditional
28
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method of restoring health. The shared use of this non-traditional health boost demonstrates that
2
Defendants copied PUBG’s expressive depiction a health boost in order to evoke the same feeling
3
and experience felt by players in BATTLEGROUNDS.
4
5
6
7
8
9
10
“Energy Drink” in BATTLEGROUNDS
11
12
13
14
15
16
17
Health-restoring drink in KO
As another example, each game offers a bandage, a first aid kit, and a more fully equipped medical
box kit that may be used to restore health following injury. As shown below, these health restoration
18
features are each expressed using similar depictions across both games. In both games, the bandage
19
20
is expressed using a green sealed pouch with writing on the front. The first aid kit in both games is
21
depicted as a re-sealable, camouflaged pouch whereas the med kit in each game is expressed as a
22
flip-top box containing various combat medic tools and supplies:
23
24
25
26
27
28
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2
3
4
5
6
Bandage, First Aid Kit, and Med Kit in BATTLEGROUNDS
7
8
9
10
11
Bandage, Medical (First Aid) Kit, and Medical Box in KO
12
13
The foregoing are selected representative examples and not an exhaustive catalogue of the large
14
number of similarities.
15
106.
Vehicles. The vehicles in KO are substantially similar to those in
16
BATTLEGROUNDS. Each game has a similar assortment of vehicles, which are expressed
17
similarly, operate similarly, and, on information and belief, possess the same or similar performance
18
statistics. For example, each game utilizes at least a buggy, a four door sedan and a motorcycle that
19
share strikingly similar depictions. For example, the buggy in both games shares the same basic
20
structure, including oversized wheels supporting a single seat, open-air roll cage:
21
22
23
24
25
26
27
Buggy in BATTLEGROUNDS
28
133
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2
3
4
5
6
7
Buggy in KO
8
As a further example, both games also use generic mid-size 4-door family sedans that are farcically
9
unequipped for and misplaced in the battlefields depicted in each game.
10
11
12
13
14
15
16
Sedan in BATTLEGROUNDS
17
18
19
20
21
22
Sedan in KO
23
24
Additionally, both games depict dual-sport motorcycles that are expressed using similarly placed
25
rear-view mirrors, wheel covers, seats and exhaust pipes.
26
27
28
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2
3
4
5
6
Motorcycle in BATTLEGROUNDS
7
8
9
10
11
12
13
Motorcycle in KO
14
The foregoing are selected representative examples and not an exhaustive catalogue of the large
15
number of similarities.
16
107.
Air-Dropped Supply Boxes. KO features air-dropped supply boxes that are
17
substantially similar to those in BATTLEGROUNDS. As in BATTLEGROUNDS, in KO, the
18
supply boxes are dropped from an aircraft, which can be heard by the players before the supply
19
boxes drop down. The supply boxes in KO are depicted in a different color combination than those
20
in BATTLEGROUNDS, but the KO supply boxes mimic their BATTLEGROUNDS counterparts in
21
all other respects. For example, the supply boxes in both games are covered in tarps and let out
22
visually dramatic plumes of red smoke after landing. On information and belief, Defendants copied
23
PUBG’s expressive depictions of the air drop where other depictions could have been used for the
24
purpose of evoking the same iconic air-drop experience depicted in BATTLEGROUNDS.
25
26
27
28
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2
3
4
5
6
7
8
Aircraft That Drops Supply Boxes in BATTLEGROUNDS
9
10
11
12
13
14
15
16
17
Aircraft That Drops Supply Boxes in KO
18
19
20
21
22
23
24
25
Loading Screen Showing Fixed-Wing Aircraft Dropping Supply Boxes in KO
26
27
28
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3
4
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6
7
8
Supply Box With Red Smoke After Landing in a Field of Wheat in BATTLEGROUNDS
9
10
11
12
13
14
15
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17
18
19
20
21
22
23
24
Supply Box With Red Smoke After Landing in a Field in KO
25
26
27
28
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2
3
4
5
6
7
8
9
Supply Box in BATTLEGROUNDS
10
11
12
13
14
15
16
17
18
Supply Box in KO
19
20
21
22
23
108.
Bombardment Zone. KO includes a bombardment zone feature that is substantially
similar to the bombardment zone feature in BATTLEGROUNDS. As in BATTLEGROUNDS, the
bombardment zone in KO periodically spawns and is expressed as a red-shaded circular area
superimposed on the miniature play area map within the play screen.
24
25
26
27
28
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2
3
4
5
6
7
8
9
Bombardment Zone indicated by red circular shading on maps in BATTLEGROUNDS
10
11
12
13
14
15
16
17
Bombardment Zone indicated by red circular shading on maps in KO
18
19
109.
Shrinking Gameplay Area. KO includes a shrinking gameplay area feature that is
20
substantially similar to the shrinking gameplay area feature in BATTLEGROUNDS. As in
21
BATTLEGROUNDS, the shrinking gameplay area in KO is expressed on the map by a white circle
22
that is centered in a “safe area” to which players are directed. In both games, the circle shrinks in
23
iterations, with each iteration encompassing one-third of the previous area. Both games also display
24
a timer that warns players when the next shrink will occur. Additionally, both games express the
25
boundary of the shrinking gameplay area as a shimmering translucent wall in the gameplay view.
26
On information and belief, the shimmering translucent wall in KO originally was depicted in blue, as
27
in BATTLEGROUNDS, but has been changed to orange.
28
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2
3
4
5
6
7
8
9
Shrinking circle and timer depicted on map in BATTLEGROUNDS
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Shrinking circle and timer depicted on map in KO
26
27
28
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2
3
4
5
6
7
8
Boundary depicted as shimmering wall in gameplay view in BATTLEGROUNDS
9
10
11
12
13
14
15
16
Boundary depicted as shimmering wall in gameplay view in KO
17
18
19
110.
Advertising, Marketing and Promotional Materials. On information and belief,
20
Defendants have advertised, marketed and/or promoted KO in a manner intended to confuse
21
consumers into believing that KO is affiliated with or otherwise related to BATTLEGROUNDS.
22
These actions are evidenced by the relationship in the Android Google Play Store and Apple App
23
Store between KO and BATTLEGROUNDS, the similarities between the appearance and
24
description of KO and BATTLEGROUNDS and the use of images unique to BATTLEGROUNDS
25
on the KO Facebook page. For example, within the Google Play Store, KO uses a near-identical
26
icon showing a male player in a white shirt, wearing a level 3 helmet with a rifle on his back and is
27
advertised using a jeep and a buggy. In the Apple Play Store, KO is advertised using the iconic
28
player in a white button up shirt and tie, level 3 helmet and rifle.
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2
3
4
5
6
Icon for BATTLEGROUNDS from PUBG Website (https://playbattlegrounds.com/main.pu)
7
8
9
10
11
12
13
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KO Icon in Google Play Store
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KO Icon in Apple App Store
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111.
Defendants have also advertised, marketed and promoted KO on Facebook using
2
imagery and expressions reminiscent of those created for BATTLEGROUNDS. For example, the
3
KO Facebook page expressly advertises and promotes “chicken dinner,” pot lids as weapons and
4
certain vehicles which, on information and belief, appear in BATTLEGROUNDS but do not appear
5
in KO.
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Evocations of “Winner Winner Chicken Dinner” in KO Advertising
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Advertising “Pot Lid” as Capable of Deflecting Bullets
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“Pot Lid” in KO Advertising
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Motorcycle with Sidecar in KO Advertising
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Motorcycle with Sidecar in BATTLEGROUNDS
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PUBG’s Efforts to Enforce Its Rights
112.
PUBG has attempted to address its dispute with Defendants through other channels
besides litigation, but Defendants have refused to acknowledge PUBG’s intellectual property rights.
For example, PUBG has sought removal of Rules of Survival and Knives Out from the Apple App
28
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Store distribution platforms, putting Defendants on notice of their misappropriation of PUBG’s
2
copyrights and trade dress.
3
113.
Apple App Store. On or about January 24, 2018, representatives of Plaintiff PUBG
4
Corporation submitted a complaint to Apple explaining that the app Rules of Survival and the app
5
Knives Out, both offered by NetEase Games in the Apple App Store, infringe the copyrights in
6
PUBG Corporation’s online game PLAYERUNKNOWN’S BATTLEGROUNDS. On or about
7
January 31, 2018, a representative of Apple provided notice of that complaint to representatives of
8
NetEase Games.
9
114.
After receiving notice of PUBG’s copyright infringement allegations, NetEase
10
refused to remove or modify the accused games and knowingly persisted in its infringement. On or
11
about January 31, 2018, a representative of NetEase Games responded to Apple and PUBG
12
Corporation, denying that Rules of Survival and Knives Out infringe PUBG Corporation’s rights.
13
The parties exchanged emails but made no progress toward resolving the dispute.
14
115.
Once it became apparent that NetEase was unwilling to acknowledge PUBG’s
15
intellectual property rights, PUBG determined that legal action would be necessary to enforce its
16
rights. On or about February 14, 2018, a representative of PUBG Corporation emailed NetEase
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Games and Apple sating, “Since it is very clear that NetEase Games disagrees with PUBG
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Corporation’s claims, PUBG Corporation has decided to take legal actions against NetEase Games.”
19
On or about February 15, 2018, a representative of NetEase Games responded to PUBG Corporation
20
and Apple, asking Apple “to withdraw this case until any valid judgements are received.” Thus,
21
after receiving repeated notice, NetEase continued to willfully infringe PUBG’s rights.
22
CLAIMS FOR RELIEF
23
FIRST CLAIM FOR RELIEF
(COPYRIGHT INFRINGEMENT UNDER 17 U.S.C. § 101 et seq.)
24
25
26
27
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116.
PUBG repeats and realleges each and every allegation contained in paragraphs 1
through 114.
117.
The PC game BATTLEGROUNDS is an original work of authorship and constitutes
copyrightable subject matter under the copyright laws of the United States. PUBG owns, and at all
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relevant times has owned, the copyright in BATTLEGROUNDS. The deposit, application, and fee
2
required for registration of the copyright have been delivered to the Copyright Office in proper form.
3
118.
Among the exclusive rights granted to PUBG under the Copyright Act are the
4
exclusive rights to reproduce BATTLEGROUNDS and its copyrightable components, to prepare
5
derivative works based upon BATTLEGROUNDS and its copyrightable components, and to
6
publicly display, perform, distribute, and sell BATTLEGROUNDS and its copyrightable
7
components and such reproductions or derivative works based upon BATTLEGROUNDS or its
8
copyrightable components.
9
119.
By developing each version of ROS and KO, Defendants have created or caused to be
10
created reproductions of BATTLEGROUNDS and its copyrightable components and/or derivative
11
works based upon BATTLEGROUNDS or its copyrightable components, all of which are
12
substantially similar in visual appearance and/or audio sound to PUBG’s original work, without
13
authorization from Plaintiff. Such actions infringe PUBG’s exclusive copyrights in
14
BATTLEGROUNDS and its copyrightable components, in violation of 17 U.S.C. §§ 106(1) and
15
106(2).
16
120.
By releasing each version of ROS and KO, Defendants have publicly displayed,
17
performed, distributed, sold, and/or offered to distribute or sell unauthorized reproductions of and/or
18
derivative works based upon BATTLEGROUNDS and/or its copyrightable components without
19
authorization from Plaintiff. Such actions infringe PUBG’s exclusive copyrights in
20
BATTLEGROUNDS and its copyrightable components, in violation of 17 U.S.C. §§ 106(3), 106(4),
21
106(5), and 106(6).
22
121.
23
24
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On information and belief, Defendants’ acts of infringement have been and continue
to be willful, intentional, knowing, and purposeful, in disregard of and indifferent to PUBG’s rights.
122.
As a direct and proximate result of Defendants’ infringing conduct, Defendants have
derived benefit and have caused PUBG both monetary and non-monetary damage.
123.
PUBG is entitled to an injunction restraining Defendants from engaging in any further
27
acts in violation of the United States and California copyright and trade dress laws. PUBG has
28
suffered irreparable harm as a result of Defendants’ infringing activities and will continue to suffer
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irreparable harm in the future unless Defendants are enjoined from their infringing conduct.
2
SECOND CLAIM FOR RELIEF
(TRADE DRESS INFRINGEMENT UNDER 15 U.S.C. § 1125(a))
3
4
5
6
124.
PUBG repeats and realleges each and every allegation contained in paragraphs 1
through 122.
125.
The total image and overall audiovisual appearance of PUBG’s BATTLEGROUNDS
7
game has acquired distinctiveness through secondary meaning which identifies its source and which
8
distinguishes it from the products of others. Consumers widely associate the total image and overall
9
audiovisual appearance as well as the distinctive elements and combination of elements uniquely
10
with PUBG. To take just a few of the examples identified above, the use of cookware as a weapon
11
or armor in a shooter game, the use of certain vehicles and landscapes and combinations thereof, the
12
use of distinctive supply boxes and the celebratory reference to chicken are elements of ornamental
13
flair that are not functional but have acquired secondary meaning, as shown by their use by players
14
in memes, parodies, skits and other contexts to refer to the BATTLEGROUNDS game and to its
15
developer, i.e., PUBG.
16
126.
Because each version of Defendants’ ROS and KO games mimic the total image and
17
overall audiovisual appearance of PUBG’s BATTLEGROUNDS game as well as distinctive
18
elements and combinations of elements within PUBG’s BATTLEGROUNDS game and because
19
Defendants have specifically advertised and marketed both ROS and KO using these elements and
20
combinations of elements, there is a likelihood of consumer confusion regarding the origin of
21
Defendants’ ROS and KO games, including whether they were developed by PUBG, are associated
22
with PUBG or PUBG’s BATTLEGROUNDS game or were sponsored and/or approved by PUBG.
23
Defendants’ use has and continues to impair the distinctiveness of PUBG’s trade dress. Defendants’
24
distribution of such a confusingly similar game infringes PUBG’s exclusive rights in the trade dress
25
of BATTLEGROUNDS, in violation of 15 U.S.C. § 1125(a)(1)(A).
26
27
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127.
On information and belief, Defendants’ acts of infringement have been and continue
to be willful, intentional, knowing, and purposeful, in disregard of and indifferent to PUBG’s rights.
128.
As a direct and proximate result of Defendants’ infringing conduct, Defendants have
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2
derived benefit and have caused PUBG both monetary and non-monetary damage.
129.
PUBG has suffered irreparable harm as a result of Defendants’ infringing activities
3
and will continue to suffer irreparable harm in the future unless Defendants are enjoined from their
4
infringing conduct.
5
6
7
8
9
THIRD CLAIM FOR RELIEF
(UNFAIR COMPETITION UNDER CAL. BUS. & PROF. CODE § 17200)
130.
PUBG repeats and realleges each and every allegation contained in paragraphs 1
through 128.
131.
Defendants have committed unlawful, unfair, and/or fraudulent business acts by
10
copying PUBG’s BATTLEGROUNDS game in each version of their ROS and KO games and
11
introducing the ROS and KO games to the marketplace at or below cost. This act was intended to
12
injure PUBG and has injured PUBG by unfairly using PUBG’s own development efforts and
13
consumer goodwill to capture mobile gaming market share before PUBG launched its own mobile
14
version of BATTLEGROUNDS, in violation of Cal. Bus. & Prof. Code § 17200.
15
132.
On information and belief, Defendants’ unlawful, unfair, and/or fraudulent business
16
acts have been and continue to be willful, intentional, knowing, and purposeful, in disregard of and
17
indifferent to PUBG’s rights.
18
133.
As a direct and proximate result of Defendants’ unlawful, unfair, and/or fraudulent
19
business conduct, Defendants have derived benefit and have caused PUBG both monetary and non-
20
monetary damage.
21
134.
PUBG has suffered irreparable harm because of Defendants’ unlawful, unfair, and/or
22
fraudulent business conduct and will continue to suffer irreparable harm in the future unless
23
Defendants are enjoined from their unlawful, unfair, and/or fraudulent business conduct.
24
25
FOURTH CLAIM FOR RELIEF
(UNFAIR COMPETITION UNDER THE COMMON LAW OF THE STATE OF
CALIFORNIA)
26
135.
PUBG repeats and realleges each and every allegation contained in paragraphs 1
27
through 133.
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136.
Defendants have committed unlawful, unfair, and/or fraudulent business acts by
2
copying PUBG’s BATTLEGROUNDS game in each version of their ROS and KO games and
3
introducing the ROS and KO games to the marketplace at or below cost. This act was intended to
4
injure PUBG and has injured PUBG by unfairly using PUBG’s own development efforts and
5
consumer goodwill to capture mobile gaming market share before PUBG launched its own mobile
6
version of BATTLEGROUNDS, in violation of the common law of the State of California.
7
137.
On information and belief, Defendants’ unlawful, unfair, and/or fraudulent business
8
acts have been and continue to be willful, intentional, knowing, and purposeful, in disregard of and
9
indifferent to PUBG’s rights.
10
138.
As a direct and proximate result of Defendants’ unlawful, unfair, and/or fraudulent
11
business conduct, Defendants have derived benefit and have caused PUBG both monetary and non-
12
monetary damage.
13
139.
PUBG has suffered irreparable harm because of Defendants’ unlawful, unfair, and/or
14
fraudulent business conduct and will continue to suffer irreparable harm in the future unless
15
Defendants are enjoined from their unlawful, unfair, and/or fraudulent business conduct.
16
PRAYER FOR RELIEF
17
140.
WHEREFORE, PUBG respectfully requests that the Court:
18
141.
Permanently enjoin Defendants and all other persons or entities who are in active
19
concert or participation with Defendants from continuing to infringe PUBG’s copyrighted work,
20
continuing to infringe PUBG’s trade dress, and continuing to engage in unlawful, unfair, and/or
21
fraudulent business conduct;
22
142.
Order Defendants to remove each and every version of the games Rules of Survival,
23
Knives Out, and similarly infringing games, from distribution and to cease developing and
24
supporting those games;
25
143.
Award PUBG statutory damages for willful copyright infringement in the amount of
26
$150,000.00 per infringed work, pursuant to 17 U.S.C. § 504(c), or, in the alternative, at PUBG’s
27
election pursuant to 17 U.S.C. § 504(b), PUBG’s actual damages and Defendants’ profits from
28
infringement, in amounts to be proven at trial;
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144.
Award PUBG statutory damages for unlawful, unfair, and/or fraudulent business
2
conduct in an amount to be determined by multiplying the number of violations found to be
3
committed by $2,500.00, pursuant to Cal. Bus. & Prof. Code § 17206;
4
5
145.
from the effects of Defendants’ unlawful acts;
6
7
Award PUBG actual damages in an amount sufficient to at least make PUBG whole
146.
Award PUBG reasonable attorneys’ fees and costs pursuant to 17 U.S.C. § 505 and
15 U.S.C. § 1117(a); and
8
147.
Grant PUBG any other and further relief this Court deems just and proper.
9
DEMAND FOR JURY TRIAL
10
11
148.
PUBG requests a trial by jury on all issues to which PUBG is entitled to a trial by
jury.
12
13
14
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Date: April 2, 2018
By: /s/ Steven S. Baik
Steven S. Baik (SBN 184622)
sbaik@sidley.com
Ryuk Park (SBN 298744)
ryuk.park@sidley.com
SIDLEY AUSTIN LLP
1001 Page Mill Road
Building 1
Palo Alto, CA 94304
Telephone: +1 650 565 7074
Facsimile: +1 650 565 7100
Rollin A. Ransom (SBN 196126)
rransom@sidley.com
SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, CA 90013
Telephone: +1 213 896 6047
Facsimile: +1 213 896 6600
24
25
Attorneys for Plaintiffs PUBG Corporation
and PUBG Santa Monica, Inc.
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27
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