Dungeons and Dragons distributor Wizards of the Coast takes a new approach to prevent players from confusing a rival’s intolerant offer with its own.
An otherwise mundane motion for an injunction, filed last week in a federal court in Seattle, begins with this startling sentence: “The upcoming Star Frontiers New Genesis game contains despicable content, including blatantly racist and transphobic content.” The kicker is that the lawsuit is not about discrimination, but about trademark infringement.
Even among those of us who have taught intellectual property law, the matter would be dry and technical — except for the allegations about the new game’s cruelly intolerant content. Again, let’s quote the motion for a ban:
“The game… contained alarming content: for example, it was claimed that ‘races in Star Frontiers New Genesis are no different from races in the real world. Some are better at certain things than others, and some races are superior to others.’ … A ‘Negro’ race is described as a ‘Subrace’ in the game and as an ‘Average’ Intelligence with a maximum Intelligence rating of 9, while the ‘Norwegian’ race has a minimum Intelligence rating of 13.”
The motion also alleges that New Genesis describes “latent problems” with certain races such as “blacks who have problems with sickle cell enemas.” [sic] and with family issues'” and that the game “includes a specific gender option for the characters ‘Male/Female, no bonuses and no trans’.”
Okay, there’s a lot of offensive stuff here. But is it actually relevant trademark law?
In this case, yes.
The driver is Wizards of the Coast, best known as the distributor of the venerable role-playing game Dungeons and Dragons. Wizards acquired the rights to D&D (as it is known) through the 1982 purchase of a company called TSR. One of the products that TSR offered was Star Frontiers, another role-playing game on the table. The case concerns a newly formed company, also known as TSR, that plans to sell a game called Star Frontiers New Genesis. Test versions of the new game have been distributed to some potential players. The new TSR states that it is free to use the relevant trademarks because Wizards of the Coast has abandoned them.
Admittedly, D&D itself has been sharply criticized for alleged racial stereotyping, and some games have been accused of worse. The video game industry has long struggled to overcome a well-deserved reputation for racism and sexism, both among gamers and the companies that design them. It’s not a niche problem: worldwide video game sales are expected to top $200 billion this year. Among popular forms of entertainment, movies and sports may be getting more attention, but compared to the video game behemoth, they are minnows.
And lately, video game makers have been trying to promote their commitment to diversity. Wizards states that it has worked hard to build a reputation for inclusivity in an industry ravaged by the opposite.
So if the allegations of racist content are true — and if Wizards hasn’t given up on the characters in question — and aren’t just confused about who is offering Star Frontiers New Genesis, the gaming community may end up blaming Wizards for the new game’s racism. . This risk can only amplify the infringement claim.
We’ve been down this road before. In 2002, the United States Court of Appeals for the 7th Circuit banned the Universal Church of the Creator from using that name, when the brand was already owned by the Church of the Creator. Here is the court’s summary of the defendant’s views:
“World Church of the Creator, on the other hand, does not worship God, but instead depicts the ‘white race’ as the ‘Creator’ and calls for the elimination of Jews, blacks and what it calls ‘mud races’. Its slogan is: ‘Committed to the survival, expansion and advancement of the white race’.”
It is true that the Defendant’s elimination theology played no formal role in the court’s analysis, but it is difficult to estimate how much informal influence the World Church’s unrepentant racism might have had. Moreover, as in the Star Frontiers New Genesis case, there was certainly a risk that the church-going public, confused by the similar names of the two entities, would hold the defendant’s outrageous views against the plaintiff.
Given these and other precedents, Wizards of the Coast seems to have a strong argument. But it’s important to understand why. It’s not about whether the creator of New Genesis should have the right to create and distribute a racist game. The company should just choose a different name.
People are free to hold and express maliciously intolerant views. But they’re also subject to the same law as everyone else – including the prohibition on profiting from someone else’s trademarks.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a law professor at Yale University and most recently authored “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”