As expected, the massively popular online shooter Playerunknown’s Battlegrounds (PUBG) has been followed by a wave of imitators, particularly on smartphones. But it has been unclear if or when the game’s creators would ever consider legal action against any of these copycats. In particular, a brief chest-puffing incident involving the similar, and hugely popular, Fortnite Battle Royale came and went last year without incident.
That changed on Monday with a suit filed against NetEase, a Chinese game publisher with two very PUBG-like games on smartphones. The suit, filed in Northern California’s US District Court by PUBG Corp (a wholly owned subsidiary of Korean game publisher Bluehole), alleges both copyright and trademark violations by NetEase’s mobile-only games Rules of Survival and Knives Out.
Much like PUBG, NetEase’s games offer 100-person online battles on an island that players parachute onto. The battles revolve around a constantly shrinking “safe zone,” a specific set of military-grade weapons and armor, and a variety of island-crossing vehicles. What’s more, NetEase’s games beat PUBG to iOS, which invited a substantial number of “PUBG on phone” comparisons before the official version finally hit mobile devices.
PUBG Corp points out in the suit that it first took action by sending a complaint to Apple on January 24 about the games being on the App Store. (The suit doesn’t clarify if PUBG Corp asked for those games to be delisted at that time.) Apple forwarded that complaint to NetEase one week later, and NetEase responded via email on January 31, “denying that Rules of Survival and Knives Out infringe PUBG Corporation’s rights.”
The suit individually describes characteristics of the game as “a copyrightable audio-visual work, individually and/or in combination with other elements of Battlegrounds,” and it includes screenshots of the competing game to make a case of infringement. Remarkably, PUBG Corp lists what it believes are 25 copyrightable characteristics about the game. Some of those are far more specific to PUBG (a constantly shrinking circle that players must rush towards to stay alive; a group of 100 players all jumping from an airplane at a match’s outset) than others (a pre-match lobby in which players can run around and shoot guns, damage models based on which body parts are shot, the use of a specific suite of popular military weapons).
PUBG Corp’s argument appears to hinge on that “in combination with other elements” label, as both targeted games include examples of each of the 25 elements by way of screenshot or gameplay description. As the lawsuit contends, “The use of cookware as a weapon or armor in a shooter game, the use of certain vehicles and landscapes and combinations thereof, the use of distinctive supply boxes, and the celebratory reference to chicken are elements of ornamental flair that are not functional but have acquired secondary meaning, as shown by their use by players in memes, parodies, skits and other contexts to refer to the Battlegrounds game and to its developer, i.e., PUBG.”
The alleged offenses in these comparisons range from “clearly inspired” to “near-exact copies.” Rules of Survival‘s biggest offenders according to the suit include a nearly identical “rural aqueduct” structure on its map, specific use of a frying pan as both a melee weapon and a piece of armor, and identical-looking sniper rifle cheek pads (an anomaly that PUBG says is proven out by a Google image search of all things).
In making its case about misleading consumers, PUBG Corp also pointed to various ad campaigns from both of NetEase’s games. Many of them make repeated references to the anachronism “winner winner chicken dinner,” which PUBG popularized last year. One Rules of Survival ad campaign even included an image of a two-seater buggy, a vehicle that exists in PUBG but does not currently exist in Rules of Survival.
Otherwise, both NetEase games revolve largely around the same systems implemented in PUBG, though it’s unclear at what point similar UI, houses, weapons, cars, terrain, and even loot boxes stop looking like “similar shooters”—especially in a crowded gaming marketplace with so many of those elements—and start looking like intentionally deceptive copies.
PUBG Corp’s list of complaints goes so far as to invite a comparison to its biggest rival, Fortnite Battle Royale, which inadvertently appears when the suit includes screenshots of iOS searches for the term “PUBG.” (Fortnite is number two in that search.) After all, out of the 25 characteristics listed in this suit, Fortnite Battle Royale certainly contains some of the biggies, like a beginning-of-match air-drop and a constantly shrinking circle. But anybody wondering why PUBG Corp didn’t sue Epic Games, the makers of Fortnite, can look at this suit for a pretty solid explanation. Many other Fortnite Battle Royale elements, including map structure, building designs, a lack of vehicles, and wholly different armor implementation, keep it clear of this lawsuit’s precisely direct comparisons.
PUBG Corp has asked the court to award damages and to have NetEase blocked from operating either game any longer.