In 1996, TSR, the company that birthed Dungeons & Dragons, was in trouble. TSR was millions of dollars in debt to Random House. Budgets were so tight that employees were being told that they had to produce products with literally no money. In December, right before Christmas, dozens of employees would be laid off. (That night, fired employee Steve Miller was accidentally set on fire at a party at Monte Cook’s house in a sort of disturbing omen of what was to come for the company.) But at Gen Con 1996, which opened on August 8th in Milwaukee, Wisconsin, TSR saw something produced by Renton, Washington upstarts and Magic: The Gathering wunderkinds Wizards of the Coast that got their attention, such that one day later, on August 9th, 1996, TSR sued Wizards of the Coast, along with Acclaim Entertainment, for $50,000 in federal court.
Despite all those problems, what did they see at Gen Con that put TSR in such a state that they practically ran to court to sue them? According to the lawsuit:
“The defendants [Wizards and Acclaim] have created a fantasy computer game product known as the PLANESWALKER WAR which has been promoted at the current GEN CON CONVENTION which is now taking place in Milwaukee, Wisconsin.”
TSR saw that Wizards and video game makers-Acclaim were producing a Magic: The Gathering video game named The Planeswalker War. TSR said that this product stepped on their trademarks in a number of different ways, all involving their Planescape campaign setting. First, TSR said the use of the word “planeswalker” was infringing on TSR’s trademarks. The lawsuit states:
“The defendants are aware of TSR’s PLANESCAPE products and the distinctive design and symbols thereof, and of the PLANEWALKER’s Handbook, and have requested TSR to send TSR’s publications to at least one representative of the defendants and TSR has sent such publications.”
In other words, the name of the video game was too close to that of a Planescape supplement written by Monte Cook.
In addition, TSR claimed that the trade dress of the product was also reminiscent of Planescape, and suggested that a former TSR employee may be to blame:
“The Defendants have utilized the distinctive fonts, characteristics, trade dress, and trademarks of TSR in connection with the Defendants’ PLANESWALKER product. Upon information and belief, at least one ex-employee of TSR, who had knowledge of TSR’s PLANESCAPE products, mark, trade dress, and distinctive marks, has authored or created portions of the Defendants’ PLANESWALKER products. Upon information and belief, the use of these marks, design, font and trade dress is likely to cause the public to believe that the Defendants’ product is from, sponsored by, or affiliated with TSR and its PLANESCAPE and PLANEWALKER’S products.”
Therefore, TSR filed suit to “halt ongoing and intentional trademark infringement, federal false designation, unfair competition, fraudulent representations, and unfair business practices” in this matter. Oh, and TSR wanted damages to the tune of $50,000.
The timing of the lawsuit again needs mention. Someone at TSR saw material advertising The Planeswalker War at Gen Con, probably on August 7th or 8th. By the end of the workday on the 9th, this suit was filed in federal court. How many decisions at TSR does that involve? Was the shot called by CEO Lorraine Williams? Did legal need to stay up late and hurry to the courthouse from Lake Geneva, a good hour away from downtown Milwaukee, to get this done by end of business on a Friday? Or was composing a suit on trademark infringement just another day at TSR? Seems unlikely, as there were only two other trademark infringement lawsuits brought by TSR that were filed in the Eastern District of Wisconsin, one against Sega for zero dollars, the other against a group called the Krypt Keepers for $100,000.
How was the lawsuit received at Wizards of the Coast?
Peter Adkison was CEO of Wizards of the Coast in 1996. He said, “I don’t have anything more than the vaguest recollection of this.”
Lisa Stevens, the first fulltime employee hired by Wizards and current CEO of Paizo Publishing said, “This is news to me. Don’t remember ever even hearing about it while at WotC which means it never made it up to any serious level. I would suggest reaching out to Brian Lewis, who was the in-house counsel for WotC back then…”
So I did.
Brian Lewis, who was general counsel at Wizards during that time didn’t recall the details of the suit either. He said, “to the extent there was a suit, it was not much of a blip on our radar at Wizards.”
He went on to say, “Keep in mind that no one ever even registered ‘Planeswalker’ as a trademark, so this would have been a very weak lawsuit and no one would have invested much money in it,” and, “I doubt anyone at Wizards would have been concerned.”
And Lewis is completely right. TSR was suing over trademark infringement of a property they had not trademarked.
The only person I found with a clear recollection of this lawsuit was Jeff Gomez, a producer working for Acclaim, the suit’s co-defendant. He was working on The Planeswalker War video game, which he said was going to be a strategy game akin to Risk. At some point in production, he said, “We were informed that it would be best for us to come up with an alternate name” for The Planeswalker War due to the conflict with TSR. The trade dress of the product was also altered.
On September 5th, 1996, TSR stated in a letter to the court, “TSR first drafted a proposed settlement agreement and forwarded it to Wizards and Acclaim’s attorneys.” By March 5th, 1997, TSR wrote in a letter to the court that all parties had, “reached an agreement to resolve the dispute.” On April 9th, 1997, the suit was dismissed.
One day later, Wizards of the Coast announced they were buying the distressed TSR.
The impression left by this lawsuit is that of a sort of death-jerk. TSR, seeing what they saw as an infringement on their trademark, and at a convention that they owned and ran, conceived and filed this lawsuit, getting it filed before the convention was even over. Was it a volley? A blow? An attempt at pushing down a competitor? But the sum demanded was, in the grand scheme of things, so small! Numerous TSR alumni have told me that Lorraine Williams had no love for Wizards. Was spite a motivation?
If it was an attack, with 20 years of hindsight, it is unremembered the Wizards folk. As General Counsel Brian Lewis said, “Honestly, we were more focused on developing a coherent video game strategy. Contextually around that time, keep in mind that we were trying to figure out how to create liquidity for shareholders, what to do with this Pokemon thing, how to print enough Magic without getting drowned in inventory, and all those amazing growth issues.”
The lawsuit is a portal into the mindset and practices of TSR management at the end of the Lorraine Williams era, but in effect, the lawsuit must be seen as the bite of a fly upon a giant.
If you want to hear more, here's my seminar "Why TSR Failed" from Gen Con 2019. You can hear more of me on my podcast, Plot Points.
Despite all those problems, what did they see at Gen Con that put TSR in such a state that they practically ran to court to sue them? According to the lawsuit:
“The defendants [Wizards and Acclaim] have created a fantasy computer game product known as the PLANESWALKER WAR which has been promoted at the current GEN CON CONVENTION which is now taking place in Milwaukee, Wisconsin.”
TSR saw that Wizards and video game makers-Acclaim were producing a Magic: The Gathering video game named The Planeswalker War. TSR said that this product stepped on their trademarks in a number of different ways, all involving their Planescape campaign setting. First, TSR said the use of the word “planeswalker” was infringing on TSR’s trademarks. The lawsuit states:
“The defendants are aware of TSR’s PLANESCAPE products and the distinctive design and symbols thereof, and of the PLANEWALKER’s Handbook, and have requested TSR to send TSR’s publications to at least one representative of the defendants and TSR has sent such publications.”
In other words, the name of the video game was too close to that of a Planescape supplement written by Monte Cook.
In addition, TSR claimed that the trade dress of the product was also reminiscent of Planescape, and suggested that a former TSR employee may be to blame:
“The Defendants have utilized the distinctive fonts, characteristics, trade dress, and trademarks of TSR in connection with the Defendants’ PLANESWALKER product. Upon information and belief, at least one ex-employee of TSR, who had knowledge of TSR’s PLANESCAPE products, mark, trade dress, and distinctive marks, has authored or created portions of the Defendants’ PLANESWALKER products. Upon information and belief, the use of these marks, design, font and trade dress is likely to cause the public to believe that the Defendants’ product is from, sponsored by, or affiliated with TSR and its PLANESCAPE and PLANEWALKER’S products.”
Therefore, TSR filed suit to “halt ongoing and intentional trademark infringement, federal false designation, unfair competition, fraudulent representations, and unfair business practices” in this matter. Oh, and TSR wanted damages to the tune of $50,000.
The timing of the lawsuit again needs mention. Someone at TSR saw material advertising The Planeswalker War at Gen Con, probably on August 7th or 8th. By the end of the workday on the 9th, this suit was filed in federal court. How many decisions at TSR does that involve? Was the shot called by CEO Lorraine Williams? Did legal need to stay up late and hurry to the courthouse from Lake Geneva, a good hour away from downtown Milwaukee, to get this done by end of business on a Friday? Or was composing a suit on trademark infringement just another day at TSR? Seems unlikely, as there were only two other trademark infringement lawsuits brought by TSR that were filed in the Eastern District of Wisconsin, one against Sega for zero dollars, the other against a group called the Krypt Keepers for $100,000.
How was the lawsuit received at Wizards of the Coast?
Peter Adkison was CEO of Wizards of the Coast in 1996. He said, “I don’t have anything more than the vaguest recollection of this.”
Lisa Stevens, the first fulltime employee hired by Wizards and current CEO of Paizo Publishing said, “This is news to me. Don’t remember ever even hearing about it while at WotC which means it never made it up to any serious level. I would suggest reaching out to Brian Lewis, who was the in-house counsel for WotC back then…”
So I did.
Brian Lewis, who was general counsel at Wizards during that time didn’t recall the details of the suit either. He said, “to the extent there was a suit, it was not much of a blip on our radar at Wizards.”
He went on to say, “Keep in mind that no one ever even registered ‘Planeswalker’ as a trademark, so this would have been a very weak lawsuit and no one would have invested much money in it,” and, “I doubt anyone at Wizards would have been concerned.”
And Lewis is completely right. TSR was suing over trademark infringement of a property they had not trademarked.
The only person I found with a clear recollection of this lawsuit was Jeff Gomez, a producer working for Acclaim, the suit’s co-defendant. He was working on The Planeswalker War video game, which he said was going to be a strategy game akin to Risk. At some point in production, he said, “We were informed that it would be best for us to come up with an alternate name” for The Planeswalker War due to the conflict with TSR. The trade dress of the product was also altered.
On September 5th, 1996, TSR stated in a letter to the court, “TSR first drafted a proposed settlement agreement and forwarded it to Wizards and Acclaim’s attorneys.” By March 5th, 1997, TSR wrote in a letter to the court that all parties had, “reached an agreement to resolve the dispute.” On April 9th, 1997, the suit was dismissed.
One day later, Wizards of the Coast announced they were buying the distressed TSR.
The impression left by this lawsuit is that of a sort of death-jerk. TSR, seeing what they saw as an infringement on their trademark, and at a convention that they owned and ran, conceived and filed this lawsuit, getting it filed before the convention was even over. Was it a volley? A blow? An attempt at pushing down a competitor? But the sum demanded was, in the grand scheme of things, so small! Numerous TSR alumni have told me that Lorraine Williams had no love for Wizards. Was spite a motivation?
If it was an attack, with 20 years of hindsight, it is unremembered the Wizards folk. As General Counsel Brian Lewis said, “Honestly, we were more focused on developing a coherent video game strategy. Contextually around that time, keep in mind that we were trying to figure out how to create liquidity for shareholders, what to do with this Pokemon thing, how to print enough Magic without getting drowned in inventory, and all those amazing growth issues.”
The lawsuit is a portal into the mindset and practices of TSR management at the end of the Lorraine Williams era, but in effect, the lawsuit must be seen as the bite of a fly upon a giant.
If you want to hear more, here's my seminar "Why TSR Failed" from Gen Con 2019. You can hear more of me on my podcast, Plot Points.
