Cynthia Zhang is an IP Intensive Student and a 3L JD Candidate at Osgoode Hall Law School.
American gaming company Wizards of the Coast (“WOTC”), a subsidiary of Hasbro, is perhaps best known for publishing Dungeons & Dragons {“D&D”), the tabletop role-playing game that has brought barbarians, beholders and basilisks to life for nearly five decades. Of course, D&D isn’t the only property that WOTC has acquired since its inception. Recently, the company has been embroiled in a legal conflict over Star Frontiers: New Genesis, a proposed reimagining of a sci-fi tabletop RPG originally published in the 1980s. After a test copy of New Genesis was leaked online, WOTC took issue with development company TSR LLC’s use of their IP rights in the game. This is an interesting example of how intellectual property law can be utilized to smother the proliferation of harmful views. The context surrounding the litigation shows that protecting business interests is not trademark law’s sole function.
Gaming enthusiasts were disturbed by the leaked game’s explicitly racist and transphobic content. The disclosure of this content follows an established record of publicly expressed homophobic, transphobic and racist views from the owners of TSR LLC.
In light of this controversy, WOTC has filed a motion for a preliminary injunction against TSR LLC to prevent publication and distribution of New Genesis. The company argues that since the game uses trademarks belonging to it, having WOTC associated with such “reprehensible content” will damage WOTC’s reputation, goodwill, and undermine the cause of embracing diversity in fantasy gaming. This motion represents the latest development in the greater claim and counterclaim between the two companies which was initiated in December 2021.
TSR LLC’s position is that they are entitled to own and use both the word marks “TSR” (the name of the original company that published the first iteration of D&D) and “Star Frontiers”, since WOTC allowed registration in these marks to lapse in the 2000s. For its part, WOTC claims that it retains common law interest in these marks, on the basis that it has continued to use the marks since at least 2012. Since then, WOTC has licensed the marks to another company which sells older editions of both D&D and the original Star Frontiers. In its injunction motion, WOTC considers criteria based on the trademark application examination process under US law. WOTC asserts that TSR LLC cannot register the marks in question because of factors such as proximity of goods, similarity of the marks, marketing channel convergence, and ultimately, consumer confusion.
In support of its injunction request, WOTC claims that it will suffer irreparable harm if New Genesis is released. WOTC states that it has built up significant goodwill in the marks at issue, which will be negatively affected by being associated with the views expressed in New Genesis. Moreover, WOTC notes that it has taken efforts to promote inclusivity and diversity in its products, a directive which is squarely at odds with the apparent sentiments of TSR LLC.
Compared to other practice areas, trademark law is often seen as purely a business mechanism. Because of how it functions, it can be easy to conclude that trademark law isn’t directly relevant to the cause of justice or societal progress. However, a proceeding like that between WOTC and TSR LLC can suggest otherwise. Forwarding more abstract values can indeed be accomplished through trademark law as well, and it doesn’t take a wizard or a warrior to do so. We will be following the outcome of this dispute as litigation continues.