TSR TSR (2) Confirms TSR (3)'s Acquisition of Trademark (Updated!)

Jayson Elliot registered the TSR trademark back in 2011 and used it to launch Gygax Magazine along with Ernie and Luke Gygax. The two Gygax's left the company a few years later after Gary Gygax's (co-founder of TSR (1) back in the 1970s) widow, Gail Gygax, forced the closure of Gygax Magazine. Then, earlier this year, TSR (3) swooped in on the TSR trademark, after Jayson Elliot accidentally let it lapse, as TSR (2) confirms:

We have owned the TSR trademark since 2011. Last year, we missed a filing date, and another company registered it, though we are still using it in commerce. While we could win a lawsuit, we frankly don't have the money to litigate. So, we're licensing it back from them.

As a result, there are two companies now using the name TSR. You can tell when it's us because we're the only ones using the new logo.

They're opening a museum in Lake Geneva at the old TSR house, and we wish them success with it, it's important to celebrate the legacy that Gary Gygax created.

Ernie Gygax, formerly of TSR (1) under Gary Gygax, then working with Jayson Elliot as part of TSR (2), is one of the founders of of TSR (3), and confirmed in his (now infamous) interview --

The other TSR is a licensee because [Jayson Elliot] let it lapse. But he had absolutely ... love for the game and the products. There was no reason to say 'oh you've screwed up, oh it's all ours, ha ha ha ha!' Instead, Justin [LaNasa] came to him and said ... we love that you're doing Top Secret things, we have a much broader goal for the whole thing. But there's no reason for you to stop or even have any troubles. Justin said, I'll take care of the paperwork, you just give me $10 a year, and you put out all this love for old school gaming that you can. And we appreciate that you were there to try and pick up things, and you produced Gygax Magazine, for in its time that you're also working on a game that you love to play ... because Top Secret was Jayson's love, as a young man.

TSR (2), still run by Jayson Elliot, publishes Top Secret, and is not connected to TSR (3) other than now having to license it’s own name from them. TSR (3) has also registered the trademark to Star Frontiers, a game owned by and still currently sold by D&D-owner WotC.

In other news the GYGAX trademark appears to have lapsed.

UPDATE! TSR (2) has decided NOT to license its own name from TSR (3):

Update to our earlier tweet - we will NOT be licensing anything from the new company claiming rights to the TSR logos. We are not working with them in any fashion.

 

[Abstruse]

I was aware of that, yes, but I had the terminology wrong (that was what I meant by "expire"). Thanks for the clarification.

So, if I'm understanding correctly, Wizards could sue TSR(N) over the copyrighted logos even though they no longer hold the trademark? If so, it will be interesting to see how they approach the issue. On the one hand, it would make Ernie Gygax look like a martyr to many people, and I can't imagine anyone at Wizards is eager for that kind of publicity. On the other hand, they really won't want to give the impression that they have officially endorsed TSR(N), particularly not with the stinkbombs Gygax dropped in that interview.

They're probably really, really hoping TSR(N) falls apart on its own, which does not seem like an unlikely outcome.

Normally I make an effort not to be pedantic, but legal matters are about the only place where pedantry is damn near required because a misplaced comma can make or break a legal case.

So yes, you're understanding correctly with the caveat that intellectual property law is complicated and Hasbro could make a case against the registered trademark as well.

So a lapsed registration for a trademark doesn't make the trademark disappear. It simply means that it's covered by common law trademark protections. It's (more or less) the same as a copyright versus a registered copyright - it's the same set of rights (more or less), but registering it protects those rights better and makes it easier to prove those rights in court.

That means when Wizards bought TSR (and Hasbro bought Wizards), they also bought all the copyrights and trademarks associated. Hasbro could, if they wanted to, make a case that they have continued to use the TSR trademark under common law through the continued reprinting of TSR material. In fact, TSR (Elliot) could make the very same case and stated so on social media, but it would require retaining a lawyer and filing a lawsuit and other legal expenses that would be too much for a small publisher. Hasbro is not a small publisher.

The designs of the logos are also protected under copyright, which (as work for hire) Hasbro owns for another 80 years, give or take a decade. The designs may or may not have been registered with the US Copyright Office, but there's a clear ownership of those logos so it would be incredibly easy to prove in court. In fact, this is very likely the reason that TSR Games (Elliot) used a completely different logo from the 70s-90s ones.

So if Hasbro were so inclined, they have multiple avenues to sue both TSR Games (Elliot) and TSR Games (LaNasa) because Hasbro owns TSR Inc (Gygax/Kaye/Blume). Doing so would make them look overly litigious and might cause PR issues for Wizards of the Coast, so the question will be whether they think the damage to their brand by consumer confusion between TSR Games (Elliot) or TSR Games (LaNasa) using the TSR trademark and TSR Games (LaNasa) using their copyrighted material is more than any damage from looking like a corporate bully.

Again, this is all a general explanation of what's going on and I cannot repeat enough that intellectual property law is complicated.

 

[imagineGod]

Normally I make an effort not to be pedantic, but legal matters are about the only place where pedantry is damn near required because a misplaced comma can make or break a legal case.

So yes, you're understanding correctly with the caveat that intellectual property law is complicated and Hasbro could make a case against the registered trademark as well.

So a lapsed registration for a trademark doesn't make the trademark disappear. It simply means that it's covered by common law trademark protections. It's (more or less) the same as a copyright versus a registered copyright - it's the same set of rights (more or less), but registering it protects those rights better and makes it easier to prove those rights in court.

That means when Wizards bought TSR (and Hasbro bought Wizards), they also bought all the copyrights and trademarks associated. Hasbro could, if they wanted to, make a case that they have continued to use the TSR trademark under common law through the continued reprinting of TSR material. In fact, TSR (Elliot) could make the very same case and stated so on social media, but it would require retaining a lawyer and filing a lawsuit and other legal expenses that would be too much for a small publisher. Hasbro is not a small publisher.

The designs of the logos are also protected under copyright, which (as work for hire) Hasbro owns for another 80 years, give or take a decade. The designs may or may not have been registered with the US Copyright Office, but there's a clear ownership of those logos so it would be incredibly easy to prove in court. In fact, this is very likely the reason that TSR Games (Elliot) used a completely different logo from the 70s-90s ones.

So if Hasbro were so inclined, they have multiple avenues to sue both TSR Games (Elliot) and TSR Games (LaNasa) because Hasbro owns TSR Inc (Gygax/Kaye/Blume). Doing so would make them look overly litigious and might cause PR issues for Wizards of the Coast, so the question will be whether they think the damage to their brand by consumer confusion between TSR Games (Elliot) or TSR Games (LaNasa) using the TSR trademark and TSR Games (LaNasa) using their copyrighted material is more than any damage from looking like a corporate bully.

Again, this is all a general explanation of what's going on and I cannot repeat enough that intellectual property law is complicated.

And all this on the cusp of the 50th Anniversary of Dungeons and Dragons and an expected announcement of new core rulebooks , including expensive special editions, that will likely fracture the fandom. Decisions, decisions, decision.

 

[Dausuul]

Normally I make an effort not to be pedantic, but legal matters are about the only place where pedantry is damn near required because a misplaced comma can make or break a legal case.

So yes, you're understanding correctly with the caveat that intellectual property law is complicated and Hasbro could make a case against the registered trademark as well.

So a lapsed registration for a trademark doesn't make the trademark disappear. It simply means that it's covered by common law trademark protections. It's (more or less) the same as a copyright versus a registered copyright - it's the same set of rights (more or less), but registering it protects those rights better and makes it easier to prove those rights in court.

That means when Wizards bought TSR (and Hasbro bought Wizards), they also bought all the copyrights and trademarks associated. Hasbro could, if they wanted to, make a case that they have continued to use the TSR trademark under common law through the continued reprinting of TSR material. In fact, TSR (Elliot) could make the very same case and stated so on social media, but it would require retaining a lawyer and filing a lawsuit and other legal expenses that would be too much for a small publisher. Hasbro is not a small publisher.

The designs of the logos are also protected under copyright, which (as work for hire) Hasbro owns for another 80 years, give or take a decade. The designs may or may not have been registered with the US Copyright Office, but there's a clear ownership of those logos so it would be incredibly easy to prove in court. In fact, this is very likely the reason that TSR Games (Elliot) used a completely different logo from the 70s-90s ones.

So if Hasbro were so inclined, they have multiple avenues to sue both TSR Games (Elliot) and TSR Games (LaNasa) because Hasbro owns TSR Inc (Gygax/Kaye/Blume). Doing so would make them look overly litigious and might cause PR issues for Wizards of the Coast, so the question will be whether they think the damage to their brand by consumer confusion between TSR Games (Elliot) or TSR Games (LaNasa) using the TSR trademark and TSR Games (LaNasa) using their copyrighted material is more than any damage from looking like a corporate bully.

Again, this is all a general explanation of what's going on and I cannot repeat enough that intellectual property law is complicated.

Thank you, that is super clear! (And I also work in a profession--software development--where a misplaced comma can wreck stuff, so I appreciate some quality pedantry.)

 

[NerdyBird]

And for other less experienced or potential publishers on the forum, it can serve as an example of how not to do things.

On the contrary, this looks more interesting by the minute. I want to see the fallout.

After a quick review, you'll both notice that i did not say "you" or "we", Just "i". That was my statement about how I feel about this story and the prominence it has in my headspace.

 

[Sir Brennen]

We were asked to avoid discussions not related to the trademark. So I will avoid some terms.

But I have noticed people here try to paint this picture that the creator of Dungeons and Dragons is somehow a bad man, and his literature requires warnings, because they choose to judge him by today's standards. Guess we are all bad then, since all our ancestors did things we consider bad today, so we all need content warnings just for being human. In some major religions that is called the original sin.

Avoiding specific terms is not the same as avoiding the discussion of things that mean the same thing as those terms. Please stop. Or contribute to the actual trademark discussion. I want to learn more and see what develops on that front.

Again, this is all a general explanation of what's going on and I cannot repeat enough that intellectual property law is complicated.

Somewhere in one of the other threads, I believe someone mentioned that failure to defend a trademark, esp. one where the registration has lapsed, could actually be used of evidence that you no longer have a claim to it. If that's true (and I'm guessing it's a "Well, it's complicated" answer), Hasbro might have to go after the TSRs who are trying to use them. Is there any accuracy to that?

 

[Sir Brennen]

After a quick review, you'll both notice that i did not say "you" or "we", Just "i". That was my statement about how I feel about this story and the prominence it has in my headspace.

I... don't know how your statement would have been read any other way. No need to get defensive.

I don't presume to speak for @MoonSong , but I believe our own statements should be read the same way. Here's edited versions to make that clearer:

And for other less experienced or potential publishers on the forum, [I think] it can serve as an example of how not to do things.

MoonSong said:
On the contrary, [I think] this looks more interesting by the minute. I want to see the fallout.

 

[Parmandur]

Normally I make an effort not to be pedantic, but legal matters are about the only place where pedantry is damn near required because a misplaced comma can make or break a legal case.

So yes, you're understanding correctly with the caveat that intellectual property law is complicated and Hasbro could make a case against the registered trademark as well.

So a lapsed registration for a trademark doesn't make the trademark disappear. It simply means that it's covered by common law trademark protections. It's (more or less) the same as a copyright versus a registered copyright - it's the same set of rights (more or less), but registering it protects those rights better and makes it easier to prove those rights in court.

That means when Wizards bought TSR (and Hasbro bought Wizards), they also bought all the copyrights and trademarks associated. Hasbro could, if they wanted to, make a case that they have continued to use the TSR trademark under common law through the continued reprinting of TSR material. In fact, TSR (Elliot) could make the very same case and stated so on social media, but it would require retaining a lawyer and filing a lawsuit and other legal expenses that would be too much for a small publisher. Hasbro is not a small publisher.

The designs of the logos are also protected under copyright, which (as work for hire) Hasbro owns for another 80 years, give or take a decade. The designs may or may not have been registered with the US Copyright Office, but there's a clear ownership of those logos so it would be incredibly easy to prove in court. In fact, this is very likely the reason that TSR Games (Elliot) used a completely different logo from the 70s-90s ones.

So if Hasbro were so inclined, they have multiple avenues to sue both TSR Games (Elliot) and TSR Games (LaNasa) because Hasbro owns TSR Inc (Gygax/Kaye/Blume). Doing so would make them look overly litigious and might cause PR issues for Wizards of the Coast, so the question will be whether they think the damage to their brand by consumer confusion between TSR Games (Elliot) or TSR Games (LaNasa) using the TSR trademark and TSR Games (LaNasa) using their copyrighted material is more than any damage from looking like a corporate bully.

Again, this is all a general explanation of what's going on and I cannot repeat enough that intellectual property law is complicated.

Given the rather astonishing behavior exhibited in the past couple of days, Hasbro could probably rip TSR-3 to absolute shreds without any significant PR fallout whatsoever, particularly if they do have plans for Star Frontiers, which there have been occasional hints towards over the past few years.

 

[Mistwell]

If you refuse to "speak ill of" or criticize the dead, you are implicitly endorsing them, which runs the risk of canonizing their poor choices and decisions.
Here are some quotes by Gary Gygax about how paladins and other Lawful Good characters should behave. I have no problem saying that this is completely and utterly wrong, and reflects a wicked worldview.

I think there are ways to criticize ideas someone had without making it about them. I think a bit too much of criticism of people, like Gary Gygax for instance, is pointed in a tone directed at the person rather than their ideas. One reason to "not speak ill of the dead" is they cannot defend themselves. Another is the context is likely obscured by time, and they may well have had a varied view at different times in their lives even on the same topic. And finally, we're all going to be where they are now, some day.

So I think we can focus on "I think the idea that women will never appreciate role playing games is flawed and, though likely strongly influenced by societal norms at the time, even in that context I wish a more enlightened view had been taken and more attempts to make the game and gamers more open to women as role players earlier," without as much focus on "Screw that guy for being sexist."

 

[lyle.spade]

Huh. Did some thinking and found I could not care less about this.

You win the Internet. If only others realized that this is possible...in fact, this is the best response.

 

[Charlaquin]

You win the Internet. If only others realized that this is possible...in fact, this is the best response.

Nah, not caring about things is boring.