TSR vs Mayfair Games
    • TSR vs Mayfair Games

      Gary Gygax had advocated arranging a licensing agreement between TSR, Inc. and Mayfair Games for their Role Aids line of game supplements, but was outvoted in the board meeting considering the question.

      In 1993, Mayfair was sued by TSR, who argued that Role Aids—advertised as compatible with Advanced Dungeons & Dragons—violated their 1984 trademark agreement. While the court found that some of the line violated their trademark, the line as a whole did not violate the agreement, and Mayfair continued publishing the line until the rights were bought by TSR.

      Not Reported in F.Supp.
      (Cite as: 1993 WL 79272 (N.D.Ill.))
      TSR, INC., Plaintiff,
      MAYFAIR GAMES, INC., a corporation and Darwin P. Bromley,
      individually and as
      President of Mayfair Games, Inc., Defendants.
      No. 91 C 0417.
      March 17, 1993.
      *1 TSR, Inc. ("TSR") has sued Mayfair Games, Inc.
      ("Mayfair") and its President Darwin Bromley ("Bromley"), seeking
      injunctive relief, damages and contract rescission on the basis
      of several claims: (1) copyright infringement, (2) trademark
      infringement, false designation and misappropriation, (3) unfair
      competition and (4) breach of contract, all arising from
      Mayfair's use on its products of TSR's "Advanced Dungeons and
      Dragons" trademark. TSR currently moves for summary judgment on
      the Fourth Count of its Amended Complaint, which asserts that
      Mayfair breached a 1984 Settlement Agreement (the "Agreement")
      between the parties. [FN1] Mayfair responds by asking for
      summary dismissal of that breach of contract claim. For the
      reasons stated in this memorandum opinion and order, each motion
      is granted in part and denied in part.
      Fed.R.Civ.P. ("Rule") 56 Standards
      Rule 56 principles impose on the movant the burden of
      establishing the lack of a genuine issue of material fact
      (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For
      that purpose this Court is "not required to draw every
      conceivable inference from the record--only those inferences that
      are reasonable"--in the light most favorable to the nonmovant
      (Bank Leumi Le- Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th
      Cir.1991)). Where as here cross- motions are involved, that
      principle thus demands a dual perspective--one that this Court
      has described as Janus-like--that sometimes calls for the denial
      of both motions.
      This District Court's General Rule ("GR") 12(m) and 12(n)
      require factual statements in support of and in opposition to
      Rule 56 motions, and both sides have tendered such statements.
      TSR's statement in support of its motion is cited "P. 12(m),"
      while Mayfair's responsive statement is cited "D. 12(n)."
      Mayfair's statement of additional facts in support of its cross-
      motion is cited "D. 12(m)," and TSR's responsive statement is
      cited "P. 12(n)." [FN2] Where one party's assertion within its GR
      12(m) statement is admitted by the other party, that will be
      indicated here by omitting "12(m)" and "12(n)," so that the
      citation will simply read "P-D P --" or "D-P P --" (the first-
      listed party being the one whose Rule 12(m) statement has been
      TSR owns trademarks for the "Advanced Dungeons and Dragons"
      ("AD & D") [FN3] and "Dungeons and Dragons" ("D & D") role-
      playing game systems, [FN4] which were created by TSR co-founder
      E. Gary Gygax ("Gygax") (P. 12(m) P 8). [FN5] Such a role-playing
      game is a system of interactive story telling using maps, dice
      and an extensive set of rules (P-D P 7). "One participant acts
      as a referee narrating the adventure, describing problems and
      controlling the actions of supporting characters and events. The
      remaining players play out their roles in accordance with the
      rules." (P-D P 10). TSR places the AD & D trademarks on rules
      and accessories, as well as on adventure modules and supplements
      (P-D P 21).
      *2 In 1982 Mayfair began to produce and market adventure and
      reference books under the trademark "Role Aids" for use in
      playing AD & D (D. Mem. 10, P- D P 22). TSR complained to
      Mayfair that Mayfair was making improper and infringing use of
      the AD & D trademark, and the parties signed the Agreement on
      September 28, 1984 to govern Mayfair's future use of TSR's
      trademarks (P-D P 28).
      Under the Agreement Mayfair acknowledged TSR's ownership of
      the D & D and AD & D trademarks and agreed not to contest their
      validity (P. Ex. 1 s III, P-D P 29). Mayfair also agreed to use
      the AD & D trademarks solely in connection with Role Aids
      modules, advertising and promotional materials. TSR's trademark
      was to appear once on an advertisement, catalog, flyer or press
      release, and only within a specific emblem form [FN6] in which
      Mayfair would state that the Role Aids product involved is for
      use with the AD & D role-playing game and that AD & D is a
      registered trademark of TSR, and would disclaim TSR's approval of
      that specific use of TSR's trademark by Mayfair (P. Ex. 1 s I and
      Ex. B, P- D PP 30-32). Mayfair's own symbol was required to
      appear on the same page. Mayfair also agreed (2) to phase out all
      noncomplying packaging, (2) not to use TSR's trademark in any
      other manner and (3) not to include statements on Role Aids
      modules carrying the AD & D trademark that such modules were
      suitable for use with other role-playing games (P. Ex. I ss IV-V
      and Ex. B, P-D 136). If materials violating the Agreement were
      distributed, Mayfair was required to make good faith efforts to
      recover such materials and to withdraw and withhold offending
      materials from distribution (P. Ex. 1 s VI, P-D 12(n) P 38).
      Despite the foregoing prohibitions, Mayfair was not prohibited
      from acquiring from the creators of Dungeons and Dragons, Arneson
      and Gygax, any of their rights to use the D & D trademark (P. Ex.
      1 s V, D-P P 121).
      Unsatisfied with Mayfair's performance, on January 22, 1991
      TSR filed its initial Complaint against Mayfair advancing the
      four claims described at the outset of this opinion. After
      discovery TSR filed an Amended Complaint on December 19, 1991.
      Only the Fourth Count is at issue on the current cross- motions,
      which dispute whether various Mayfair products violate the terms
      of the Agreement (P. 12(m) PP 40-106).
      Breach of the Agreement
      TSR's allegations of breach of the Agreement by various
      Mayfair products fall into three categories: (1) packaging and
      promotional materials for the "City State of the Invincible
      overlord" product, (2) "Role Aids" promotional materials and (3)
      advertising materials for the "Freedom of Choice" campaign. This
      opinion addresses each in.turn.
      City State of the Invincible overlord
      In July 1987 Mayfair acquired the rights in, and began to
      produce and market, a new role-playing game called "City-State of
      the Invincible overlord" (the "Invincible Overlord" game)(P-D P
      41). On July 9 Mayfair and Gygax entered into a written
      agreement under which the Invincible Overlord box cover would
      state that it came "With an introduction by E. Gary Gygax,
      creator of Advanced Dungeons & Dragons" ("Gygax statement")(D-P P
      122). TSR's trademark was not placed within the cartouche as
      specified in the Agreement, and no disclaimer of TSR's approval
      of the use of the AD & D trademark was visible (P-D P 44).
      Mayfair used the Gygax statement in the text of a flyer promoting
      Invincible overlord, and it used the AD & D trademark again at
      the bottom of the flyer to identify AD & D as a registered
      trademark of TSR (P-D P 47). Mayfair also used the AD & D
      trademark in various promotional materials that depicted the
      Invincible Overlord box cover or described Invincible Overlord as
      compatible with AD & D, without an accompanying disclaimer of
      TSR's approval of the use of its trademark (P-D PP 50, 52, 54,
      56). [FN7]
      *3 TSR asserts that all uses of the AD & D trademark in
      connection with the Invincible overlord game violate the
      Agreement. Mayfair admits that the use of the AD & D trademark
      in the 1990 Mayfair Trade Catalog violated the Agreement (D.
      12(n) P 51), but it denies that the other uses violate the
      Agreement (D. 12(n) PP 46, 48, 53, 55).
      A. Gygax Statement
      Mayfair's use of the AD & D trademark within the Gygax
      statement in conjunction with Invincible Overlord and related
      advertisements contravenes the plain language of the Agreement,
      which states in part (P. Ex. 1 P I): Mayfair agrees that except
      as otherwise provided herein, any use of TSR's Advanced Dungeons
      & Dragons trademark shall be limited to use within a specified
      Trademark Statement, solely in connection with "Role Aids"
      modules, and advertising and promotional materials therefor, and
      strictly in compliance with the Trademark Use Requirements as set
      forth in Exhibit B attached hereto and incorporated herein by
      reference. Invincible Overlord is not of course a Role Aids
      product. Even though the Agreement later went on (P. Ex. 1 P V)
      to carve out a total exception for rights acquired from Gygax,
      that exception was limited to rights in the D & D trademark, and
      the AD & D trademark did not appear in the oval emblem form.
      Mayfair's Mem. 5 argues that it used the Gygax statement based on
      his representation that under his confidential termination of
      employment agreement with TSR he had the right to allow Mayfair
      to use the statement. However, Mayfair's belief in that respect
      could not of course justify a patent breach of the Agreement's
      limitations. [FN8]
      But Mayfair also contends that TSR's acceptance of several
      ads for Invincible Overlord that showed the Gygax statement
      operate as a waiver of TSR's claim of a material breach (D. Mem.
      10). TSR's own Dragon Magazine published three Mayfair ads for
      Invincible overlord in March 1988, April 1989 and February 1990
      (D-P P 124). TSR claims that portions of the ads with the Gygax
      statement were not visible in the ads (P. 12(n) P 124). While
      TSR admits that a lawyer reviews "certain advertisements" for
      possible misuse of trademarks, TSR's attorney was employed only
      for "some portions of the pertinent time period" (P. 12(n) P
      Under Wisconsin law waiver requires proof of (1) a right
      possessed by the waiving party, (2) knowledge of the right by the
      waiving party and (3) an intentional and voluntary waiver
      (Shannon v. Shannon, 429 N.W.2d 525, 530 (Wis.App.1988)). Intent
      to waive a known right may be inferred from the conduct of the
      parties (Christensen v. Equity Coop. Livestock Sale Ass'n, 396
      N.W.2d 762, 763 (Wis.1986)).
      Under a view of the facts in the light most favorable to
      Mayfair, TSR's knowing acceptance of the Invincible Overlord
      advertisements, which displayed a picture of the Invincible
      Overlord box cover with the Gygax statement, could be construed
      as a waiver of the materiality of any breach by Mayfair's
      packaging and advertising. Mayfair used the Gygax statement on
      the Invincible Overlord box cover (P. Ex. 12) and in the
      Invincible Overlord flyer (P. Ex. 13), the Invincible Overlord
      product description sheet (P. Ex. 14), the Mayfair reply card (P.
      Ex. 16) and the 1990 Mayfair trade catalog (P. Ex. 17). To the
      extent that TSR's motion for summary judgment charges Mayfair
      with breach of the Agreement by its use of the Gygax statement in
      Invincible Overlord advertising and packaging, the motion is
      therefore denied.
      *4 On the other side of the coin, Mayfair's motion for
      summary dismissal of that same charge on grounds of waiver by
      acceptance must be denied as well. By definition TSR could not
      waive any objection to use of the Gygax statement if it did not
      know or should not have known of that use (Shannon, 429 N.W.2d at
      530). Although the visibility of the Gygax statement varies
      within the ads, in all three of the ads the box cover print is
      greatly reduced, so that the statement is not as readily noticed
      as it would be on the full-sized box cover. TSR also asserts
      that "the legal department at TSR had an attorney employee for
      only some portions of the pertinent time period" (P. 12(n) P
      123). But the statement that TSR cites for that statement (Moore
      Dep. 18-20) does not really support its proposition. [FN9]
      Nevertheless it remains possible that the.TSR attorney reviewers,
      if any, may not have noticed the Gygax statement in the
      Invincible Overlord ads. [FN10]
      Mayfair's Mem. 10 also contends that TSR's failure to object
      to the use of the AD & D trademark before filing the motion for
      summary judgment operates as a waiver on delay grounds. Although
      Mayfair has not labeled (nor argued) the contention in this
      fashion, this Court views the argument--waiver due to the passage
      of time--as one for the application of laches. Wisconsin law
      requires four elements for laches to apply: (1) unreasonable
      delay, (2) knowledge of the basis of the claim and failure to act
      on the part of the plaintiff, (3) lack of knowledge on the part
      of the party asserting the defense that the other party would
      assert the right on which he bases his suit and (4) prejudice to
      the party asserting the defense in the event the action is
      maintained (Jensen v. Janesville Sand & Gravel Co., 415 N.W.2d
      559, 562 (Wis.App.1987)).
      Again on a pro-Mayfair look at the facts, TSR knew of the
      Invincible Overlord ad by March 1988 but did not raise any
      objection until it filed its summary judgment motion on June 17,
      1992. [FN11] That four-year lapse before objection may well be
      unreasonable (see Money Store v. Harriscorp Finance, Inc., 689
      F.2d 666, 674 (7th Cir.1982), upholding the district court's
      determination that a 22-month delay was unreasonable). [FN12]
      Such an unreasonable delay in trademark actions precludes
      recovery of damages or wrongfully derived profits during the
      period before suit was filed (James Burrough Ltd. v. Sign of the
      Beefeater, Inc, 572 F.2d 574, 578 (7th Cir.1978)). Although
      injunctive relief and damages and profits for the period after
      the filing of suit may not be precluded (id., citing McLean v.
      Fleming, 96 U.S. 245 (1877)), Mayfair has said it ceased
      distribution of Invincible Overlord in June 1992 (Bromley Aff. P
      12). If so, and if Mayfair can make the appropriate showing of
      prejudice due to TSR's delay, the laches defense would in effect
      be a complete bar to relief on the issue of breach by the
      Invincible Overlord product.
      To take the opposite view as was done with Mayfair's
      estoppel defense, the defense of laches requires knowledge (or at
      least constructive knowledge) on TSR's part. Because this
      opinion must assume lack of knowledge by TSR in considering
      Mayfair's motion to dismiss, [FN13] laches cannot now provide
      grounds to grant Mayfair's motion.
      B. Compatibility with AD & D
      *5 TSR also alleges breach of the Agreement by two
      Invincible Overlord materials that state that the series is
      compatible with AD & D. Mayfair has admitted that the Mayfair
      1990 trade catalog, which stated that "The Invincible overlord
      series is compatible with the Advanced Dungeons & Dragons role-
      playing game" (with the only disclaimer statement being placed in
      a footnote ten pages later) violated the Agreement. Because
      Mayfair has also made no defense of waiver as to that catalog
      (see D. Mem. 10), TSR's motion for summary judgment is granted to
      the extent that it is based on breach of the Agreement by the
      1990 Mayfair trade catalog.
      TSR has also alleged violation by writers' guidelines that
      Mayfair distributed to authors and potential authors of its
      publications. Those guidelines stated that "The Overlord and
      Role Aids product lines are designed for use with TSR's Advanced
      Dungeons & Dragons TM system" (P. 12(m) P 53, P. Ex. 11)).
      Mayfair denies violation, but without any attempt at providing an
      explanation or evidence (D. 12(n) P 53). Accordingly breach of
      the Agreement by the writers' guidelines is deemed admitted, and
      summary judgment is granted to that extent as well.
      Role Aids Promotional Materials
      In 1988 or 1989 Mayfair began a marketing drive for the Role
      Aids product line, and in 1990 it introduced the new Role Aids
      modules "Witches," "Psionics" and "Lizardmen" (P-D P 57). TSR
      claims that the advertising materials for the Role Aids products
      (reply cards, trade and consumer catalogs, posters, flyers, slick
      sheets, press releases, product description sheets and Mayfair
      Games News letters) violated the terms of the Agreement (P. 12(m)
      PP 57-93).
      A. Violations Admitted by Mayfair
      Mayfair acknowledges many of TSR/s assertions. It admits
      that its reply card (P. Ex. 16, D. 12(n) P 59), its 1990 summer
      catalog (P. Ex. 18, D. 12(n) P 63), a flyer for the "Witches"
      module (P. Ex. 21, D. 12(n) P 65), the Role Aids Slick sheets (P.
      Ex. 22, D. 12(n) P 68), an advertisement for "Psionics" (P. Ex.
      20, D. 12(n) P 70), its 1990 and 1991 trade catalogs (P. Exs. 17,
      19, D. 12(n) PP 72, 74), the July 1990 and June 1992 Mayfair
      Games News letters (P. Exs. 25, 27, D. 12(n) PP 79, 81) and
      several Role Aids product description sheets (P. Ex. 28-1 to -4,
      and -6 to -15, D. 12(n) PP 84, 86, 88) all violated the
      Agreement. Mayfair also admits that the "People, Places &
      Things" sourcebook and "Demons" module product description sheets
      violate the Agreement (P. Exs. 29-1 and -2, D. 12(n) PP 99, 100).
      Mayfair makes three arguments as to those admitted
      violations by the Role Aids promotional materials: (1) TSR has
      waived its right to object because Mayfair gave TSR copies of the
      Role Aids promotional materials violating the Agreement at game
      conventions between 1988 and 1991, but TSR did not alert Mayfair
      to the violations until the Amended Complaint was filed in
      December 1991, (2) the breaches were not material and (3) the
      violations caused no injury to TSR. Those arguments are addressed
      in turn.
      1. Waiver As already indicated, Mayfair says that it
      provided TSR representatives with copies of the Role Aids
      promotional materials from 1988 to 1991 (D. Mem. 11; Bromley
      Aff. P 19). Because TSR assertedly did not notify Mayfair of the
      violations until the December 1991 filing of the Amended
      Complaint, Mayfair urges that TSR has waived its right to object
      to the violations (D. Mem. 11). Again this will be treated as an
      argument for the application of laches.
      *6 TSR admits that "Darwin Bromley and perhaps other
      representatives of Mayfair have passed out some catalogs and
      promotional materials to some representatives of TSR for general
      promotional purposes" (P. 12(n) P 135). However, TSR Mem. 6
      argues that it did not knowingly relinquish its right to object
      to the Role Aids promotional materials. TSR asserts that the
      promotional materials were distributed primarily during 1990
      through 1992, that TSR filed its initial Complaint here on
      January 22, 1991 and that many Mayfair documents were not
      produced until Bromley's deposition was taken on October 1 and 2,
      1991, after which TSR filed its Amended Complaint expanding the
      Fourth Count on December 16, 1991 (P. R. Mem. 5, Bromley Dep.
      Only one of the materials that Mayfair acknowledges as
      violations is dated in 1988, with the rest dated in 1990, 1991 or
      1992. [FN14] measured back from the filing of the Amended
      Complaint, the earliest of the undated 1990 materials could not
      have been as much as 24 months old before TSR lodged its
      objections. Case law in this circuit has noted "that two years
      has rarely, if ever, been held to be a delay of sufficient length
      to establish laches" (Piper Aircraft Corp. v. Wag-Aero, Inc., 741
      F.2d 925, 933 (7th Cir.1984)). Even if TSR knew of each
      offending Mayfair item at the time of issue (an unlikely
      situation, and certainly not established on the current record),
      Mayfair would have a potential laches defense only as to a single
      product description sheet dated in 1988. And TSR's failure to
      object to a single isolated item cannot form the basis for a
      laches defense.
      Thus Mayfair's motion to dismiss the breach of contract
      claim on the basis of laches must be denied. TSR's statement
      that it had only limited knowledge of the offending materials
      before filing its December 1991 Amended Complaint is enough to
      negate the required element of knowledge of facts sufficient to
      raise a claim for breach. In fact, Mayfair may have contributed
      to TSR's delay by its own delays in responding to discovery
      2. Lack of Materiality
      Mayfair Mem. 11 advances a lack of materiality defense in
      one nonstop sentence: [T]he promotional materials showed that
      they were from Mayfair and the Role Aids modules themselves,
      without exception, contained the Trademark Statement in strict
      compliance with the Settlement Agreement on their front covers so
      as to put the consumer clearly on notice as to the disclaimer
      sentences which, in fact, have little impact on the consumer and
      are not even read by the typical consumer who, in making a
      purchase decision, does not care which particular company
      produced the role-playing product. That argument might have had
      force in the absence of the Agreement--but once the parties had
      entered into the Agreement, such a contention comes too late.
      Agreement Ex. B P 5 requires, not only as to the Role Aids
      modules but also as to all promotional materials except for sales
      training literature, correspondence and press releases, that
      Mayfair use the AD & D trademark only in the form of the
      cartouche with the disclaimer statement. In the Agreement itself
      Mayfair "acknowledge[d] that its failure to remedy [a] violation
      in accordance with the foregoing may result in immediate and
      irreparable damage to TSR" (P. Ex. 1 P VI). Mayfair has admitted
      that it has disseminated materials using the AD & D trademark
      outside of the cartouche form and without the disclaimer
      statement, but also says that it has not attempted to recover the
      violating Role Aids advertising and marketing materials.
      *7 In short, this branch of Mayfair's argument would
      effectively render the Agreement a nullity by making a violation
      of its key terms nonactionable. That contention too is rejected.
      3. Lack of Injury
      Mayfair finally contends that even if it violated the
      Agreement, its actions caused no injury to TSR. Walgreen Co. v.
      Sara Creek Property Co., 775 F.Supp. 1192, 1195 (E.D. Wis.1991)
      teaches that Wisconsin follows universal doctrine in that
      respect: Under Wisconsin law, a plaintiff claiming breach of
      contract has the burden of proving by a preponderance of the
      evidence that ... the defendant's breach is material and results
      or will result in injury.
      Mayfair says that its use of TSR's trademarks caused no
      customer confusion. To that end it presents the deposition of
      Stephen Winter, AD & D product group leader and game editor at
      TSR, in which he testified that he was aware of no customer
      confusion of Mayfair for TSR products since the Agreement (Winter
      Dep. 43) and that consumers do not refer to "Advanced Dungeons
      and Dragons" as a generic designation for role-playing game
      systems (id. at 37-38). [FN15] Moreover, Mayfair Mem. 12-13
      states, the Trademark Statement was an the cover of every Role
      Aids module, the Role Aids logo was more prominent on the front
      cover than the AD & D logo and every Role Aids module and piece
      of promotional material indicated that it came from Mayfair. On
      the other hand, TSR says that confusion is "inevitable," and it
      represents (though not in evidentiary form) that retailers in
      London had "intermix[ed]" TSR and Mayfair products (P. R. Mem. 9
      & n. 3).
      For aught that appears, this may indeed be a case of minimal
      damage to TSR. So far as the ultimate consumer is concerned,
      Mayfair's compliance with the Agreement on all Role Aids modules
      negates any potential damage--for having bargained for the
      precise form of disclaimer that it wanted, TSR will not be heard
      to say that it has been hurt when that disclaimer has been
      adhered to. As for the sales market in which TSR and Mayfair
      compete, whether wholesalers or retailers, there has been no
      showing of lost sales or damage to the value of TSR's trademarks
      because of Mayfair's violations of the Agreement in promotional
      materials. That subject remains for future determination. [FN16]
      And as stated later, the record here does not support TSR's claim
      for rescission of the Agreement.
      Accordingly the appropriate action at this point is simply
      to declare the existence of the breaches that have been admitted
      by Mayfair. To that extent TSR is entitled to a judgment as a
      matter of law, with the decision as to the extent of any damages
      remedy to await further proceedings.
      B. Violations Denied by Mayfair
      1. Demons
      TSR contends and Mayfair denies that the cover of its new
      "Demons" module violates the Agreement (P-D P 108). [FN17]
      According to TSR, Mayfair has failed to comply with the
      contractual requirement that the Mayfair trademark be visually
      more prominent than the AD & D trademark--a requirement
      buttressed by express standards. TSR's Supp. Mem. 2 argues that
      in violation of those standards the Role Aids logo is "almost
      invisible" in the upper corner of Demons, in gold lettering on a
      red background. Mayfair admits that "[t]he degree of contrast of
      the Role Aids logo on Mayfair's Demons product cover ... is
      substantially less than it was on the final proof submitted by
      the printer and approved by Mayfair" (Bromley Aff. P 37). Even
      so, Mayfair urges that the Role Aids logo is nonetheless visible,
      that the second page of Demons makes clear that it is a Mayfair
      product and that "future production runs of Demons will have the
      Role Aids logo in white on a red background" (D. 12(m) P 149,
      Bromley Aff. P 37, D. Ex. 7).
      *8 There is no ambiguity in the Agreement, which requires
      that "the ROLE AIDS trademark [be] on a color background with no
      less contrast than the contrast of the ADVANCED DUNGEONS &
      DRAGONS trademark to its background" (P. Ex. 1 P I and Ex. B P
      1). Although the Role Aids logo was not visible at all in the
      photocopy of the Demons cover originally submitted to this Court,
      it is certainly legible on the Demons module itself. But the
      Role Aids logo is a dull gold printed on a red background, while
      the AD & D logo is in white on a red background. Mayfair's
      printer woes and future intentions notwithstanding, the cover of
      the present Demons module clearly does not comply with the terms
      of the Agreement. It too constitutes a contractual breach.
      2. Quote from Dragon Magazine Review
      TSR also asserts that Mayfair's 1990 and 1991 trade catalogs
      and the Undead product description sheet (P. Ex. 17 at 25, P. Ex.
      19 at 11, P. Ex. 28-5) violate the Agreement by using this quote
      from a review of Undead in Dragon Magazine (P-D P 75): This is a
      quality AD & D game campaign supplement. The setting is
      imaginative and fantastic; the dead guys are grim and menacing;
      there are plenty of neat new magic and monsters. [FN18] Mayfair
      denies that its use of the AD & D trademark in the context of
      quoting from Dragon Magazine amounts to a violation of the
      Agreement (D. 12(n) P 76).
      Agreement P V provides in part: Except for use of TSR's
      Advanced Dungeons & Dragons trademark in accordance with this
      Agreement, Mayfair hereby agrees to cease and desist throughout
      the world from use of TSR's Advanced Dungeons & Dragons trademark
      or any mark confusingly similar thereto, in connection with any
      products or advertising or any other materials. If the quoted
      review had originated with Mayfair, there could be no disputing
      that it violated that restriction. Mayfair would have it that
      the answer should be different because the reviewer and not
      Mayfair made the decision to describe Undead as an "AD & D game
      campaign supplement" (D. 12(n) P 76, Bromley Aff. P 36). But no
      use by others of the AD & D trademark in connection with Role
      Aids products can clear the way for Mayfair to do the same.
      After all, Mayfair has curtailed its own use of the AD & D
      trademark in the Agreement. It may not avoid those restrictions
      by copying the usage of someone who was not so inhibited, the
      Dragon Magazine reviewer.
      Once again Mayfair points out that TSR did not complain to
      Mayfair until it filed the present motion. Mayfair had included
      the Dragon Magazine quote in its 1990 and 1991 catalogs, several
      years after issuing the product description sheet on October 20,
      1986. Though Mayfair has not contended that it supplied TSR with
      a copy of that earlier document, it says that it gave TSR copies
      of the Mayfair Games catalog at trade conventions (D 12(m) P 35).
      But as already stated, even if TSR became aware of the violation
      in the 1990 catalog, [FN19] its failure to object before it filed
      the Amended Complaint in December 1991 is not so unreasonable as
      to bar its current claim. [FN20]
      3. "Suitable for Use with Any Fantasy Campaign"
      *9 According to TSR, the To Hell & Back Again product
      description sheet (P. Ex. 29-3) also violates the Agreement
      because it 'says that the product "has numerous locations that
      can be worked into any fantasy campaign" (P. 12(m) P 100).
      Mayfair disputes that, because the relevant provision of the
      Agreement prevents Mayfair only from describing Role Aids as
      "suitable for other role- playing games" (P. Ex. 1 P I and Ex. B
      P 6). For that purpose "role-playing game" is defined as (id.):
      a structured form of social entertainment comprising a quantified
      interactive story telling game that allows the participants,
      within their imagination, and subject to the limitations of the
      game's rules, to adventure forward, attempting to satisfy their
      personal ambitions or fantasies through the use of the
      characteristics, perceptions and abilities of an imaginery [sic]
      character or person.
      Mayfair Mem. 6-7 urges a difference between a role-playing
      game and a fantasy campaign (D. 12(n) P 101, Bromley Aff. P 18,
      Winter Dep. 82, Santana Aff. P 4). According to Mayfair Mem. 6,
      "there are multiple fantasy campaigns in Advanced Dungeons and
      Dragons." Winter Dep. 82 describes a fantasy campaign as "the
      series of adventures that's being conducted by a particular game
      referee or with a particular group of players with a rotating
      referee's position."
      Although TSR seeks to deny Mayfair's assertion that the use
      of the term "fantasy campaign" does not violate the Agreement (P.
      12(m) P 130), it does admit that "[a] fantasy campaign is
      different from a fantasy role-playing game" (P. 12(m) P 131). It
      really has advanced neither argument nor evidence to counter
      Mayfair's position that the use of the term "fantasy campaign" is
      a nonviolation.
      TSR's Mem. 29-31 explains that its purpose in preventing
      Mayfair from stating that Role Aids were suitable for use with
      other role-playing games as well as AD & D was to protect TSR's
      trademark from becoming generic. Sounding another variation on
      the same theme, TSR's R. Mem. 9 asserts that "Mayfair's
      advertising campaign promoting ROLE AIDS modules as suitable 'for
      any fantasy role-playing game on the market' harms the reputation
      and goodwill of the ADVANCED DUNGEONS & DRAGONS mark as
      representing a unique brand of products."
      That is really nonsense. As Mayfair's Mem. 11 asks
      rhetorically: If the producer of Gatorade claims its drink is
      great for football players and also claims it is great for
      participants in any high-energy sport, is it reasonable to argue
      that football is at risk of becoming generic for high- energy
      sports as a result thereof? Indeed, the restriction that TSR
      incorrectly contends was violated in the respect now under
      discussion [FN21] is the one aspect of the Agreement that appears
      to find no legitimate justification in TSR's trademark rights.
      It seems to be purely anticompetitive and hence likely
      unenforceable as an unlawful extension of the trademarks.
      *10 For present purposes, though, that issue need not be
      decided. It is enough to find (as this Court has) that TSR loses
      as a matter of contract. Mayfair is entitled to dismissal of the
      claim that the Agreement was breached by the To Hell and Back
      Again product description sheet.
      C. Freedom of Choice Campaign
      In late 1991 Mayfair began the "Freedom of Choice"
      advertising campaign (D. 12(m), P. 12(n) P 127). Mayfair has
      admitted that its Freedom of Choice Poster that stated Role Aids
      products "were for use with any role-playing game" violated the
      terms of the Agreement (P. Ex. 31, D. 12(n) P 96). But its Mem.
      6 says that once it realized that in April 1992, it promptly
      terminated the use of promotional materials having the non-
      complying language (Santana Aff. P 4).
      Mayfair presents no evidence that it then attempted to
      recall the Freedom of Choice materials, but its Mem. 7 states
      that such attempts are futile (Bromley Aff. P 34, Santana Aff. P
      6). TSR denies that Mayfair made good faith efforts to retrieve
      noncomplying materials (P. 12(n) PP 130, 150), pointing out that
      Bromley based his conclusion of the futility of recall attempts
      merely on the attempted recall of one shipment of Psionics
      (Bromley Aff. P 34). In fact, Mayfair's Jennifer Santana
      testified that Mayfair made no attempts at recall of the Freedom
      of Choice materials (Santana Aff. P 6). It does not necessarily
      follow from the futility of Mayfair's attempts to recall the
      Psionics modules that had been sent to stores that Mayfair would
      have been equally unsuccessful in.recalling advertising
      materials. After all, stores may be willing to comply with a
      request to refrain from posting an advertisement or to replace
      the advertisement with another, but may be reluctant to send back
      what they believe will be a popular product.
      Mayfair's Mem. 10 also contends that its acknowledged breach
      of the Agreement by the Freedom of Choice campaign literature is
      not material because "the trade was correctly describing Role
      Aids as being usable in any fantasy role-playing game for a long
      time prior thereto" (D. 12(m) P 128). TSR denies that, but its
      denial hardly seems in good faith in light of TSR's own Ex. 33, a
      collection of catalog pages listing Mayfair Role Aids products.
      Capital City's Game Buyer's Monthly for July 1990 and its March
      1991 releases describe Mayfair's "Witches" and "Lizardmen"
      modules as suitable for "any fantasy roleplaying adventure or
      campaign" and "for use with any fantasy RPG" (P. Exs. 33-1 and -
      2); Capital City"s "The Premium Specialty Collection" May,
      October and December 1990 issues describe Role Aids products as
      "generic" (P. Exs. 33-19, -20, -21); Wargames West's 1991 Spring
      catalog states that Role Aids modules "can be used with any
      fantasy role-playing system, especially TSR's Dungeons & Dragons
      and AD & D systems" (P. Ex. 33-25). Several of the pages in P.
      Ex. 33 list Role Aids modules under the category "Generic Fantasy
      Source Books and Modules" (P. Exs. 33-3 through 33-13, 33-22 and
      33-23) and describe Lizardmen and Psionics as "universal," "for
      use with any RPG" or "designed to adapt to any fantasy
      roleplaying game system" (P. Ex. 33-14 through 33-16, 33-24), but
      no date of publication is shown on those exhibits.
      *11 Mayfair has presented Bromley's affidavit testimony that
      the only catalogs in P. Ex. 33 that did not precede the Freedom
      of Choice campaign are P. Ex. 33-17 and 33-18 (Bromley Aff. P
      14). Although the last page of Exhibit 33 (left unnumbered by
      TSR) from the 1991-92 Winter/Spring Wargames West Catalog may
      have come out after the Freedom of Choice campaign, TSR has made
      no effort to provide the date of those materials. However, given
      the substantial number of dated exhibits that describe Role Aids
      modules generically, the undated exhibits provide only cumulative
      To be sure, the fact that others describe Role Aids in a
      manner that Mayfair agreed not to use does not release Mayfair
      from its promise. But as.has already been indicated in the
      discussion about the To Hell & Back Again product description
      sheet, there is more than a serious question whether that promise
      is valid and enforceable. Indeed, the usages by others that
      comprise the various subparts of P. Ex. 33 graphically illustrate
      the total lack of connection between a statement that Role Aids
      has multiple uses and any conclusion that one of those uses--that
      in conjunction with AD & D--somehow renders AD & D generic.
      Again this Court would be strongly inclined to consider
      invalidating that component of the Agreement. But once again it
      is unnecessary to take that step, for at worst this claimed
      violation of the Agreement is both de minimis and in the past.
      It has potential relevance only on the issue of the relief to
      which TSR may be entitled.
      This opinion has earlier referred to the bifurcation of
      issues that has deferred the question of damages sustained by TSR
      as the result of Mayfair's several violations of the Agreement.
      Consequently all that now remains for consideration is whether
      TSR's prayer for rescission of the Agreement should be granted or
      Not surprisingly, Wisconsin law adheres to universal
      equitable principles in defining the conditions that entitle a
      party to rescission of a contract for its breach. Any party who
      would rescind a contract must do so within a reasonable time
      following its discovery of the breach (Thompson v. Village of
      Hales Corners, 340 N.W.2d 704, 718 (Wis.1983)(six-month delay in
      asserting rights bars rescission)). Rescission is not the
      appropriate remedy for every breach of contract--rather "the
      nonperformance must be substantial and the breach so serious as
      to destroy the essential objects of the contract" (Seidling v.
      Unichem, Inc., 191 N.W.2d 205, 207 (Wis.1971)). And rescission
      must "restore the parties to the position they would have
      occupied if no contract had ever been made between them": Each
      party must return to the other all benefits received under the
      contract (id. at 208; First Nat'l Bank & Trust Co. v. Notte, 293
      N.W.2d 530, 539 (Wis.1980)).
      Merely to state those basic principles is to demonstrate why
      rescission is inappropriate here., Whether or not TSR acted with
      sufficient promptness after it learned of Mayfair's breaches,
      [FN22] the parties' many years of performance under the contract
      obviously render its unwinding far more difficult and less
      appropriate (a point elaborated on in a moment). Next, it can
      hardly be said that the breaches identified here have
      "destroy[ed] the essence of the contract"--it will be remembered
      that the presentation of Mayfair's Role Aids products to the
      ultimate consumer has always (with one minor and inadvertent
      exception) adhered to the standards that TSR itself established
      to assure that Mayfair would not poach on its preserves (a point
      also elaborated on in a moment or two).
      *12 Perhaps most importantly, there is no way in which the
      parties can effectively be restored to the status quo ante
      contract--no way in which the omelet can be unscrambled and put
      back into the egg. It is truly an impossibility, given the time
      span from 1984 to the present during which the parties have
      functioned under their contract, to "restore the parties to the
      position they would have occupied if no contract had been made
      between them." In terms of the restoration of benefits, just how
      can TSR repay whatever benefit it has derived from the ongoing
      Role Aids advertising of AD & D as the only role-playing game
      expressly mentioned on Mayfair's products, or it has derived from
      the continued reinforcement of the AD & D trademarks over the
      intervening years without any attack by Mayfair?
      In sum, this case does not at all call for TSR to obtain the
      equitable benefit of contract rescission, beyond whatever damages
      (not yet established) that it is able to demonstrate flowing from
      the breaches shown here. For over eight years it has derived the
      principal benefits that it bargained for in the Agreement: 1. To
      the consuming public, Mayfair has meticulously observed the
      requirements marked out by TSR--standards that make plain its
      nonsponsorship of Mayfair's competing Role Aids modules, while at
      the same time keeping the AD & D name before the consumers, with
      TSR identified as its source. [FN23] 2. TSR's trademarks have
      remained without challenge from Mayfair, promoting the continued
      entrenchment of D & D and AD & D as fixtures in the consuming
      public's minds.
      As against that, TSR has shown a number of contract breaches
      by Mayfair--but not such as to demand rescission. In some
      instances Mayfair has cured the problems on its own, or (as in
      the Demons situation) has promptly stated its intention to
      correct the inadvertent error. In one instance it terminated the
      employee responsible for misreading the Agreement's directives.
      And there is no reason to believe that it will not promptly
      correct the remaining breaches that have been found here.
      Moreover, this opinion has twice commented on the apparent
      overreaching by TSR in one part of the Agreement: prohibiting
      Mayfair's truthful advertising of the fact that Role Aids
      products may be utilized by members of the consuming public in
      conjunction with rival role-playing games as well as with AD & D.
      That restraint inhibits not only Mayfair's market among consumers
      who have purchased (or might intend to purchase) role-playing
      games from TSR's competitors but (not incidentally) also tends to
      lessen the demand for those competitive games among purchasers of
      Mayfair's Role Aids products. And again those anti-competitive
      measures appear to find no rational support in TSR's legitimate
      goals for protecting the integrity of its own trademarks. [FN24]
      Whether or not those considerations invalidate that
      particular restraint of trade has not been decided here, because
      it need not be. But those considerations do tend to place in
      sharper focus the effect of a rescission of the Agreement here.
      Because of AD & D's prominence in the marketplace, any revocation
      of Mayfair's permission to refer to AD & D with appropriate
      disclaimers could bid fair to destroy Role Aids as a competitor
      for the marketplace with TSR's own products intended for use in
      that role-playing game. [FN25] What is.reflected in the total
      record here simply does not support this Court's throwing its
      weight into the competitive scales in that fashion, when TSR has
      a fully adequate remedy in the form of its recouping any damages
      that it can prove and its obtaining an injunction compelling
      Mayfair's correction of past violations and preventing new
      violations. [FN26]
      *13 TSR's motion is granted to the extent that this Court
      finds the following materials to have violated the Agreement:
      the 1990 Mayfair Trade Catalog with the Invincible overlord
      compatibility statement, the Invincible overlord writers'
      guidelines, all the challenged Role Aids materials except for the
      To Hell & Back Again product description sheet and the Freedom of
      Choice materials. TSR's motion is denied as to Mayfair's use of
      the Gygax statement on the Invincible Overlord materials.
      Mayfair's motion is also denied as to that use of the Gygax
      statement, while its motion is granted as to the To Hell & Back
      Again product description sheet. As to remedies for the
      adjudicated violations, TSR's prayer for rescission of the
      Agreement is denied, and the scope of appropriate relief is
      deferred pending further submissions by the parties.
      FN1. According to TSR's Mem. 1 n.1, its success on that
      claim "would subsume the relief it seeks for trademark
      infringement." And because Mayfair is not now distributing the
      book that gave rise to TSR's copyright infringement claim, "the
      crux of the current dispute would be decided" (id.).
      FN2. Because Mayfair's Statement of Additional Facts was
      appended to its GR 12(m) statement, the D. 12(m) and P. 12(n)
      numbering began where the P. 12(m) and D. 12(n) numbering left
      FN3. Trademarks involved include "Advanced Dungeons and
      Dragons," "AD & D," "Dungeons and Dragons" and "D & D." For
      brevity's sake, this opinion refers to each set of trademarks by
      employing only the abbreviated version. But where either set of
      initials is used in the singular, it will stand for the full-
      length mark ("Dungeons and Dragons" or "Advance Dungeons and
      Dragons") unless otherwise specified.
      FN4. Mayfair's responsive statements have devoted a
      substantial amount of rhetoric to disputing the characterization
      of Advanced Dungeons and Dragons and Dungeons and Dragons as
      "games," contending in part that TSR does not "own" either of
      them (see D. 12(n) PP 7-10, 12, 14, 15, 17, 23). For those
      propositions Mayfair cites to Bromley's Aff. P 3: A role-playing
      game is quantified, interactive storytelling, in accordance with
      a series of rules and algorithms which define how the players
      interact with one another and the game master. A role-playing
      game is intangible, does not have a brand or trademark and is not
      itself sold or owned. Books and reference information may be
      used but are not essential for a role- playing game.
      Interestingly, Mayfair does not dispute TSR's contention that
      Mayfair "produces its own role-playing games" (P-D P 22).
      Moreover, Mayfair is not consistent in its own semantic
      insistence. It states at D. Mem. 10 that "Advanced Dungeons and
      Dragons is different from other role-playing games because it is
      based on different rules." As TSR has pointed out, the only
      function of Mayfair's contentions seems to be an end run around
      the Agreement's ban on its contesting the validity of the AD & D
      FN5. David Arneson ("Arneson") was co-creator of Dungeons
      and Dragons.
      FN6. Although the Agreement characterized that form as an
      "oval," its physical depiction in P. Ex. 1 Ex. B is that of an
      oblong cartouche drawn to appear three-dimensional. It seems
      that the parties are better developers of games than they are
      lexicographers. This opinion will use "cartouche" rather than
      "oval" to refer to the emblem.
      FN7. Mayfair's 1990 Trade Catalog did contain a footnote
      marker after the AD & D trademark. Ten pages later "in small
      print at the bottom of the page" was a disclaimer of TSR"s
      approval of Mayfair's use of its trademark (P-D P 50). TSR also
      points out, without alleging violation of the Agreement, that
      both the 1990 Mayfair catalog and the Mayfair customer reply card
      (P. Ex. 16) identified Invincible Overlord as adaptable for use
      with any fantasy role-playing system (P. 12(m) PP 50, 56).
      Although Agreement Ex. B P 6 prohibited Role Aids modules that
      utilized the trademark statement from also including statements
      that such modules are suitable for use with other role-playing
      games, TSR has not attempted to argue that use of the AD & D
      trademark on a non-Role Aids product is governed by a similar
      FN8. One issue that TSR has steered clear of is how, given
      the standards of trademark law as to likelihood of confusion and
      confusing similarity, it could create an unlimited exception to
      the Agreement's restrictions on Mayfair to allow Mayfair to deal
      with Gygax for use of the D & D trademarks, and yet cavil at
      Mayfair's acquisition of rights that Gygax apparently had in the
      AD & D trademarks. Before TSR will be heard to make anything out
      of that aspect of Mayfair's claimed breaches (an issue deferred
      by the summary judgment context of this opinion), it has some
      more explaining to do.
      FN9. Moore testified that the legal department reviewed ads
      before placement for misuse of TSR's trademarks (Moore Dep. 18-
      19). Moore also testified that when he took the editorship of
      Dragon Magazine in 1986, policies for review of ads may have been
      "in flux" and he was "not sure at what point they settled out"
      (id. at 19).
      FN10. What has just been said in the text truly gives TSR
      the benefit of the most favorable reasonable inferences. Even
      though waiver law speaks of a party's knowledge, the concept
      would seem to extend to charged knowledge as well--to prevent a
      party from playing ostrich. Indeed, Shannon, 429 N.W.2d at 530
      speaks of what the party knew or should have known. Thus final
      resolution of the issue will require examination of whether TSR
      should have known of the Invincible Overlord ads' contents, given
      its keen awareness of the importance of its trademark rights and
      of the nature of the role-playing game industry.
      FN11. Neither TSR's original Complaint nor its Amended
      Complaint had mentioned Invincible Overlord.
      FN12. Although the analogous statute of limitations for
      breach of contract has yet to run in this case, Wisconsin law
      allows application of a laches defense within the limitations
      period (Schafer v. Wegner, 254 N.W.2d 193, 196-97 (Wis.1977)).
      FN13. But see n.10.
      FN14. TSR could not have known of many of the Role Aids
      items until 1990 at the earliest. That was the year in which
      Mayfair introduced the Witches, Psionics and Lizardmen modules.
      Those promotional materials would include an advertisement for
      "Psionics" (P. Ex. 20, D. 12(n) P 70) a flyer for the Witches
      module (P. Ex. 21, D. 12(n) P 65), a product description sheet
      for Witches (P. Ex. 28-1), the 1990 summer catalog (P. Ex. 18, D.
      12(n) P 63), the 1990 and 1991 trade catalogs (P. Exs. 17, 19, D.
      12(n) PP 72, 74), and the July 1990 and June 1992 Mayfair Games
      News letters (P. Exs. 25, 27, D. 12(n) PP 79, 81). In addition,
      the product description sheets for People, Places and Things and
      Demons (P. Ex. 29-1 and -2) were for products to be introduced in
      1992 (P-D P 98). One product description sheet (P. Ex. 28-2) is
      dated in 1988, while the rest are dated from 1983 to 1986 (P.
      Exs. 28-5 to 28-15). Some materials are undated: Mayfair's
      reply card (P. Ex. 16), Role Aids slick sheets (P. Ex. 22) and
      two Role Aids product description sheets (P. Exs. 28-3 and -4).
      FN15. Winter was, however, aware of media use of the
      trademark "Dungeons and Dragons" to describe role-playing games
      generically. Winter also testified that most customers would not
      read the disclaimer language, and that at least some consumers
      might think that a Role Aids product was licensed by TSR (Winter
      Dep. 50-51).
      FN16. This is not said to be critical. This Court earlier
      entered an order bifurcating liability from damages.
      FN17. TSR first saw the newly-developed Demons product at a
      trade show in late August 1992, after its summary judgment motion
      had been filed and briefing was under way (P-D P 107). TSR then
      obtained leave to file a supplemental memorandum in support of
      its motion, in which it addressed the latest of Mayfair's claimed
      violations of the Agreement.
      FN18. [Footnote by this Court] It may also be noted that the
      AD & D trademark in the Dragon Magazine quote in Mayfair's 1991
      catalog is over twice as large as the print of the rest of the
      words in the sentence, and is also the largest descriptive print
      on the page except for the lettering on the photographs of the
      Role Aids modules.
      FN19. TSR's partial denial in its P. 12(n) P 135 is really
      ambiguous. That type of deliberate ambiguity will be construed
      against it, but it turns out to make no difference.
      FN20. Mayfair contends that TSR did not complain of
      Mayfair's use of the Dragon Magazine statement until the current
      motion for partial summary judgment was filed in June 1992 (D.
      12(m) P 43). Although TSR denies that (P. 12(n) P 143), its
      citation to Williams Dep. 40-41 really does not support that
      position. That makes no difference, however, given the
      allegation in Amended Complaint P 57: Mayfair has breached the
      Limited Use terms of the Settlement Agreement by its use of the
      TSR Trademarks in ... connection with certain of the Role Aids
      publications and related materials. Under the Rules' notice
      pleading regime, that is enough--TSR was not required to plead
      its evidence. And Mayfair's use of the quote from Dragon
      Magazine in describing Undead, a Role Aids product, surely comes
      within the scope of the pleading's allegation.
      FN21. As indicated earlier, that contention is incorrect as
      a matter of contract construction: TSR has acknowledged that
      "fantasy campaign" is different from "fantasy role-playing game,"
      so that a prohibition framed in terms of the latter is not
      violated by a statement that speaks in terms of the former.
      FN22. There is understandably a very different and much
      shorter yardstick for rescission purposes than for the
      application of laches. Laches actually defeats any claim of the
      aggrieved party, while the denial of the rescission remedy still
      preserves for that party the benefit of being made whole through
      the recovery of damages. In this case it would seem that TSR has
      failed to meet the timetable defined in Thompson as a
      precondition to rescission, but whether or not that is so, TSR
      fails on the other grounds discussed here.
      FN23. Although Demons has been a single exception to
      Mayfair's strict adherence to the Agreement's specifications for
      Role Aids modules, there is no reason to discredit Mayfair's
      explanation that the contrast between the Role Aids name and its
      background in the final product turned out to be less than the
      original printers' proofs had shown. It will be remembered that
      the Demons product came onto the market over 18 months after this
      lawsuit was brought, and after TSR had already launched its
      current motion. What incentive would Mayfair have, after eight
      years of living by the Agreement's standards in designing all of
      its other product modules, to depart from that practice
      deliberately in the face of this litigation and a Rule 56 motion?
      FN24. If anything, it would seem that measures that would
      thus tend to promote AD & D's market domination would make it
      more likely, rather than less likely, that AD & D might become a
      generic term among consumers. It is only necessary to recall
      such examples as Eastman's fight to prevent "Kodak" from entering
      the public domain, or Bayer's like fight as to "Aspirin" or GE's
      comparable fight as to "Frigidaire."
      FN25. Absent Mayfair's joinder in AD & D's prayer for
      rescission, it is assumed here that Mayfair is willing to
      continue to live with the specific ground rules set out in the
      Agreement, rather than having both parties relegated to the
      principles of law (such as fair use) that would apply in the
      absence of contract.
      FN26. It should be emphasized that this point is only an
      added fillip that demonstrates the soundness of denying TSR this
      specific equitable relief-- one to which it has not shown its
      entitlement based on the equitable principles that uniformly
      govern the availability of the rescission remedy.