TSR TSR3.5 Launches IndieGogo Campaign to "Stop" WotC

The latest in the TSR3 saga, which has gone quiet for a while, is a new IndieGoGo campaign launched to "stop Wizards of the Coast". They cite wrongful bullying of TSR, and refusal to answer requests that WotC show TSR "proof of their claims" (although the campaign page doesn't mention what those claims are).

The IndieGoGo campaign was launched yesterday and has so far raised $675 (at the time of writing).

The action TSR seeks is a "Trademark Declaratory Judgement of Ownership" which is a court declaration about the status of something in dispute.

TSR has launched a campaign to stop Wizards of the Coast

Become a Champion of TSR and Support TSR’s campaign against Wizards of the Coast!

TSR is taking a stand against Wizards of the Coast (“WOTC”) and its wrongful bullying of TSR, our trademarks, and its public libeling and slander of all those who helped create TSR based Dungeons & Dragons and products.

Wizards of the Coast has continually bullied TSR regarding TSR’s legally owned Trademarks. Wizards of the Coast has refused to answer all of TSR's repeated requests that they show any proof of their claims. Wizards of the Coast has the vast resources behind them and is implying to bring them to bear down on TSR.

The new TSR suffered widespread pushback when it launched, which they blamed on WotC, claiming that they were under a "coordinated assault across various channels being mounted.... by [WotC]" The company announced itself earlier this year, having acquired the TSR trademark after the previous holder accidentally let it lapse. It was run by Ernie Gygax, Justin LaNasa, and Stephen Dinehart. After several weeks of controversy, the company split into two -- Wonderfilled (Stephen Dinehart), and TSR (Ernie Gygax and Justin LaNasa).

TSR - TSR3 Blames Widespread Pushback On WotC

In an unexpected turn of events, the primary individuals behind TSR3 have claimed the pushback they've received on social media and elsewhere was orchestrated by .... D&D publisher Wizards of the Coast (a company which has thus far remained completely silent on recent events). TSR3 is run by...

www.enworld.org

The page also indicates an intention to "fight to have WotC's legacy product disclaimer removed" from older products (that's the disclaimer on the older books available on DMs Guild which indicates that those books are products of their time) by claiming that the disclaimer portrays the creators of those older products as "as supporting those alleged prejudices, stereotypes and bigotry, wrongfully claimed to be part of those products".

TSR will also Fight to Have the WOTC Legacy Disclaimer Removed

TSR is suing WOTC for Trademark Declaratory Judgement of Ownership . TSR will also pursue in the near future having WOTC remove the legacy content disclaimer placed on TSR based Dungeons & Dragons and other products, and retractions of any other libel and slander which alleges that racism and other heinous beliefs are incorporated into those products.

This disclaimer attempts to make a statement of fact argument, and therefore paints all of the writers, editors, artists and consumers of those products as supporting those alleged prejudices, stereotypes and bigotry, wrongfully claimed to be part of those products. This statement by Wizards of the Coast opens the possibility for the producers and players of these "Legacy Products" to face ridicule, and face the labeling as "bigots", "racists", "misogynists", and worse Cyber & Physical Attacks!

Wizards of the Coast legacy content disclaimer.

"We (Wizards) recognize that some of the legacy content available on this website does not reflect the values of the Dungeons & Dragons franchise today. Some older content may reflect ethnic, racial, and gender prejudice that were commonplace in American society at that time. These depictions were wrong then and are wrong today. This content is presented as it was originally created, because to do otherwise would be the same as claiming these prejudices never existed. Dungeons & Dragons teaches that diversity is a strength, and we strive to make our D&D products as welcoming and inclusive as possible. This part of our work will never end".

TSR3's Justin LaNasa spoke about the campaign in a YouTube video.

TSR - Companies & Freelancers Distance Themselves From The New TSR

The new TSR (which I refer to as TSR3 to avoid confusion) has doubled down on its stance--which has been widely condemned online--via an ongoing series of tweets and replies from its TSR Games, Giantlands, and Dungeon Hobby Museum social media accounts (possibly operated by Justin LaNasa) in an...

www.enworld.org

 

[Umbran]

Yeah, it is a mistake to identify the entity who produces the reproduction as the "publisher". Even traditional hardcopy publishers use printers, after all, but the printer is not the "publisher" or IP owner.

The publisher is at a particular point of responsibility and decision-making in the chain of production. DTRPG has, as I understand it, basically no rights whatsoever to change the works being sold, so they cannot be the publisher of those works - they are analogous to printers and retailers.

DTRPG cannot be trading under the mark if they don't get to choose the mark.

 

[pemerton]

I don't think that there is a license from WotC. I think that WotC is selling the products through a storefront that takes a cut from the sales.

WotC doesn't sell anything. When you buy from DriveThru you don't enter into a contractual relationship with WotC (this is the same as buying from Target), and you don't come to own any goods that WotC once owned (this is different from buying from Target). You gain IP-related permissions from WotC, via their licensee DriveThruRPG; or, in the case of POD, you buy a product from DriveThruRPG that WotC has licensed them to produce.

 

[pemerton]

Yeah, it is a mistake to identify the entity who produces the reproduction as the "publisher". Even traditional hardcopy publishers use printers, after all, but the printer is not the "publisher" or IP owner.

The printer does not own the printed works - they are owned by the publisher, pursuant to a contract of sale, with the printer having a vendor's lien if payment hasn't yet been received.

DriveThruRPG, on the other hand - or some other entity in some relationship to it (I don't know the full corporate and contractual structure) - does own the PoD books prior to shipping them to a customer. The physical books are not owned by the printer, for the same reasons as in the previous paragraph, but nor are they ever the property of WotC. DriveThru is printing them under licence. From WotC's point of view this is the whole rationale of PoD - it never has to invest in inventory, and instead leverages its IP to generate a stream of royalties.

The publisher is at a particular point of responsibility and decision-making in the chain of production. DTRPG has, as I understand it, basically no rights whatsoever to change the works being sold, so they cannot be the publisher of those works - they are analogous to printers and retailers.

What you say here is a type of commercial/functional analysis. But what underpins the TSR3 suit is a legal analysis. And you are not having regard to the difference in analysis.

TSR3's case may be weak, but I don't think their lawyers are incompetent. There is a reason the suit fastens on the licensee issue.

 

[Cadence]

The printer does not own the printed works - they are owned by the publisher, pursuant to a contract of sale, with the printer having a vendor's lien if payment hasn't yet been received.

DriveThruRPG, on the other hand - or some other entity in some relationship to it (I don't know the full corporate and contractual structure) - does own the PoD books prior to shipping them to a customer. The physical books are not owned by the printer, for the same reasons as in the previous paragraph, but nor are they ever the property of WotC. DriveThru is printing them under licence. From WotC's point of view this is the whole rationale of PoD - it never has to invest in inventory, and instead leverages its IP to generate a stream of royalties.

What you say here is a type of commercial/functional analysis. But what underpins the TSR3 suit is a legal analysis. And you are not having regard to the difference in analysis.

TSR3's case may be weak, but I don't think their lawyers are incompetent. There is a reason the suit fastens on the licensee issue.

How is this different in idea from print to order t-shirts with entertainment IP on them?

 

[Bedrockgames]

WotC doesn't sell anything. When you buy from DriveThru you don't enter into a contractual relationship with WotC (this is the same as buying from Target), and you don't come to own any goods that WotC once owned (this is different from buying from Target). You gain IP-related permissions from WotC, via their licensee DriveThruRPG; or, in the case of POD, you buy a product from DriveThruRPG that WotC has licensed them to produce.

I sell stuff on Drivethru. The way it works is you have a couple of options in terms of the percentage that Drivethru takes out: if you only put your PDFs up there (this might apply to print now since they added that but not sure), they take out less of a cut, if you use drivethru but also use other PDF sales platforms, they take out a slightly bigger cut. Basically you then upload your PDF file and set up the sales description and price for each book you put up. When there is a sale you get what is left after Drivethru takes its cut (and there are also options for sending portions to freelancers if you have residual agreements). It is pretty efficient, you can run a report every minute if you want to track each sale and see the money go into your account (I usually run my sales reports every few days to every week).

I don't print books there, but I do go through a company that handles our printing and it is similar. Basically I send in the print files, and the company I work with takes them to lightning source to get printed (and they take out a portion of the sales for their efforts: this company is also our print seller). I think with Drivethru, publishers directly submit their files to Drivehtru, who then transfer those files to (I am assuming) lightning source (they may use a different POD service).

And there is an agreement when you first start using the service (this is where you set the option for whether you are going to use drivethru exclusively or not).

Drivethru doesn't own any of the IP anymore than target, to stick with your example, owns the copyright to music they sell in store. But if you have an exclusive agreement with Drivethru (I don't), and then decided to put your PDF up on another sales platform, that would be a potential issue.

 

[Snarf Zagyg]

I'm aware of all the above. I mentioned or alluded to it in my post.

But what is being traded, and who is the trader? The relationship between WotC and DriveThru seems, to me, to have as much in common with the relationship between a franchisor and a franchisee as it does with the relationship between the Coca Cola company and a corner shop with a drinks fridge. Because DriveThru is not purchasing any goods from WotC and then selling them on. It is providing its own services (software services) and selling goods that it produced (POD books) under licence from WotC.

If WotC had been selling - via traditional distribution networks - Star Frontiers books that it had had printed, with the TSR logo on them, then I'm 100% confident that the TSR3 pleadings would not look like they do.

As I also posted, I am not making any comment on the strength of TSR3's argument. But I'm responding to some posts upthread that have been confused by the reference, in the pleadings, to licence relationships.

Again, NO.

McDonalds does not lost its mark because it has a franchise arrangement.

If the law is complicated to you, just watch Coming to America.

 

[Sacrosanct]

Let’s say for sake of argument that WoTC doesn’t own the marks because OBS is the one who is actually selling them. Then LaNasas argument still doesn’t hold water because then OBS would have rights to those marks since they are actively selling them and not TSR3. Either way, I don’t see how they can make a claim to them.

 

[Bedrockgames]

From WotC's point of view this is the whole rationale of PoD - it never has to invest in inventory, and instead leverages its IP to generate a stream of royalties.

It also eliminates worrying about warehousing, which can be pricey.

 

[pemerton]

How is this different in idea from print to order t-shirts with entertainment IP on them?

In some ways, it probably isn't. The people selling you the shirts will have licences from the relevant IP holders. (Mostly copyright licences, not trademark licences.)

But here's two differences (related ones):

(1) If you buy a t-shirt with (say) the Coca Colo logo printed on it, the t-shirt vendor is not trading, nor purporting to trade, as a maker or seller of soft drinks. So the key IP question is about copyright (ie do they have a licence to reproduce the graphics), not trademarks.

(2) There is no doubt that Coca Cola has been trading using, among other things, the Coca Cola logo continuously for decades. So that logo performs the role of distinguishing, in the course of trade, their soft drinks. They are not relying upon the sale of the printed t-shirts to establish their use of the logo in the course of trade.

Neither (1) nor (2) is the case here. DriveThru is trading as a provide of RPG files and POD publisher of RPG books. And as far as I know WotC's only argument that it has been trading, in recent years, using the TSR logo is that DriveThru has been selling RPG files and PODing RPG books under licence from WotC.

This seems to be the peg on which the argument in TSR3's pleading have been hung. To me, with my modest knowledge of trademark law, there seem to be two points of weakness in their argument: (i) they don't seem to know the terms of the WotC-DriveThru licence; (ii) if they concede - as they seem to - that DriveThru has been using the marks in the course of its trade, I don't see how they can argue the marks are distinct to TSR3. (There is at least a third weakness, that by all accounts TSR3 has not traded under the marks at least to any substantial degree, but that weakness seems to me to be independent of the argument about licensing.)

 

[Nikosandros]

WotC doesn't sell anything. When you buy from DriveThru you don't enter into a contractual relationship with WotC (this is the same as buying from Target), and you don't come to own any goods that WotC once owned (this is different from buying from Target). You gain IP-related permissions from WotC, via their licensee DriveThruRPG; or, in the case of POD, you buy a product from DriveThruRPG that WotC has licensed them to produce.

No. If I buy a POD, I buy it form WotC (or from any other company that sells them on Drivetrhu). Drivethru prints them and ships them, but the seller is WotC.