Can Trademark Law Stop Racist Role Play?

An otherwise mundane motion for an injunction filed last week in federal court in Seattle opens with this startling sentence: “Defendants’ forthcoming Star Frontiers New Genesis game contains vile content, including blatantly racist and transphobic content. ” The problem is that the dispute is not about discrimination but about trademark infringement.

Even among those of us who have taught intellectual property law, the case would be dry and technical – save for the allegations about the new game’s viciously intolerant content. To quote the injunction motion again:

“The game…contained alarming content: stating, for example, that “Racing in Star Frontiers New Genesis is no different from racing in the real world. Some are better than others at certain things, and some races are superior to others. … A “Negro” race is described as a “sub-race” in-game and as having “average” intelligence with a maximum intelligence rating of 9, while the “Nordic” race has a rating of minimum intelligence of 13.

The petition also alleges that New Genesis “describes ‘latent issues’ with certain races such as ‘black people with sickle cell disease’. [sic] and with family issues”” and that the game “includes a specific gender option for the characters ‘Male/Female with no bonus and no trans. “”

Okay, there’s a lot of offensive stuff here. But is it really a relevant trademark law?

The mover is Wizards of the Coast, best known as the distributor of the venerable Dungeons and Dragons role-playing game. Wizards got the rights to D&D (as it’s called) through the 1997 purchase of a company called TSR. Among the products offered by TSR was Star Frontiers, another tabletop role-playing game. The case concerns a newly created company, also called TSR, which 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 says it is free to use the affected marks because Wizards of the Coast has discontinued them.

Granted, D&D itself has been heavily criticized for supposed racial stereotyping, and some games have been blamed for 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 make them. It’s not a niche problem: worldwide video game sales are expected to top $200 billion this year. Among popular entertainment, movies and sports might get more attention, but compared to the video game giant, they’re minnows.

And lately, video game makers have been scrambling to promote their commitment to diversity. Wizards says it has worked hard to develop a reputation for inclusiveness in an industry plagued by the opposite.

So if the racist content allegations are true – and if Wizards hasn’t discontinued the brands in question – then in addition to being confused about who is offering Star Frontiers New Genesis, the gaming community might end up blaming Wizards. for the racism of the new game. This risk can only strengthen the action for infringement.

We’ve been down this road before. In 2002, the United States Court of Appeals for the 7th Circuit prohibited the Worldwide Church of the Creator from using this name, when the mark was already owned by the Church of the Creator. Here is the court’s summary of the defendant’s views:

“The Worldwide Church of the Creator, on the other hand, does not worship God but rather portrays the ‘white race’ as the ‘Creator’ and calls for the elimination of Jews, blacks and what it calls ‘races’. of mud”. Its slogan is: “Dedicated to the survival, expansion and advancement of the white race”.

Admittedly, the defendant’s eliminationist theology played no formal role in the court’s analysis, but it is unclear what informal influence the unrepentant racism of the world church might have had. Moreover, just as in the Star Frontiers New Genesis case, there was certainly a risk that the practicing public, confused by the similar names of the two entities, might hold the defendant’s outrageous views against the plaintiff.

Given this and other precedents, Wizards of the Coast seems to have a strong case. But it is important to understand why. The question is not whether the creator of New Genesis should have the right to manufacture and distribute a racist game. The company would just have to choose another name.

People are free to hold and express viciously intolerant opinions. But they are also subject to the same law as everyone else, including the prohibition against profiting from the marks of others.

More from Bloomberg Opinion:

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• A Texas judge took “religious freedom” too far: Noah Feldman

• Your Guide to the Permanent Pandemic Economy: Allison Schrager

(Corrects the year Wizards of the Coast obtained the rights to Dungeons & Dragons in the seventh paragraph. Corrects the title to clarify that the game in question is an RPG.)

This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. A law professor at Yale University, he is the author, most recently, of “Invisible: the story of the black lawyer who shot down America’s most powerful gangster”.

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