TSR Wizards of the Coast Requests Injunction Against NuTSR

The legal team for Wizards of the Coast filed a motion for a preliminary injunction against TSR LLC, Dungeon Hobby Shop Museum LLC, and Justin LaNasa on September 8, 2022 to prevent the publication of Star Frontiers New Genesis.

The motion seeks the court to issue an order preventing LaNasa or his companies from “publishing, distributing, or otherwise making available Star Frontiers New Genesis or any iteration of the game using the Marks”. Wizards of the Coast’s lawyers claim that the company would suffer irreparable harm to their reputation due to customer confusion and that Wizards of the Coast may become associated with the playtest document content containing "racism and transphobia".

Accompanying the motion were two declarations of support with further corroborating evidence. The first came from Elizabeth M. Schuh, Director of Publishing and Licensing for Dungeons & Dragons for Wizards of the Coast, supporting the claims of Wizards of the Coast’s investment in the TSR brand, tracing the history through the company’s acquisition in 1997 to the release of Star Frontiers products on OneBookShelf (parent company of DriveThruRPG and Dungeonmasters Guild) and through to the purchase of D&D Beyond.

Schuh’s declaration continues, stating that from the original filing of the countersuit until the end of July 2022, “Wizards believed TSR LLC was not actually selling or distributing any games bearing the Marks” and that Wizards of the Coast is concerned about the problematic content contained in the playtest document.

The declaration concludes with Schuh stating Wizards of the Coast’s philosophy of “an inclusive culture for gaming, including for its Dungeons & Dragons products”, including copies of the June 2020 blog post stating a change to the depiction of race in D&D, the October 2021 Sage Advice column by Jeremy Crawford on stat block and race changes starting with The Wild Beyond the Witchlight, and the recent September 2 apology for the Hadozee race in Spelljammer: Adventures in Space. A September 9 article from the website Study Breaks titled “The Dungeons & Dragons Community Is Committing to Diversity” is used to support the claim that “The gaming community, through press and player forums, has noted Wizards’ efforts”.

The second declaration is from Lauren Rainwater, a partner at the legal firm Davis Wright Tremaine LLP representing Wizards of the Coast in the suit. This declaration focuses on brand confusion with screenshots from the Dungeon Hobby Shop Museum’s “Out of Stock” store page for Star Frontiers New Genesis along with posts from EN World and Reddit documenting users posting their confusion at news about the game’s offensive content.

The exhibits from Rainwater’s filing include documentation of the trademark registration made by LaNasa, further screenshots of TSR-branded products for sale in the Dungeon Hobby Shop Museum webstore, social media advertisements for Star Frontiers New Genesis, a copy of a TechRaptor story from July 2022 titled “TSR’s Star Frontiers New Genesis Playtest Contains Racist Content”, and screenshots of the Twitter thread by user @NoHateInGaming documenting material from the leaked playtest document.

And to support the claims of offensive content contained in the Star Frontiers New Genesis playtest document, Exhibit E of Lakewater’s declaration is a copy of several pages from the playtest document obtained via subpoena from Don Semora of Wizard Tower Games. Multiple sections of the document are highlighted featuring the more obviously offensive statements, the majority of which were previously detailed in the above-linked thread by @NoHateInGaming.

If granted, the injunction will only prevent LaNasa, TSR LLC, and Dungeon Hobby Shop Museum from publishing Star Frontiers New Genesis or any other products using the “Star Frontiers” name, but it will not cover other “infringing activities” such as the use of the TSR trademark. The court precedent (one of thirty cited in the motion) Price v. City of Stockton requires that the injunction request have a narrow scope to prevent an injunction from sweeping too broadly when weighing the balance of hardships. As Wizards of the Coast is claiming the damage will be done to the company’s brand reputation due to the content in Star Frontiers New Genesis, the injunction is solely to prevent its release.

The motion is noted for consideration for September 30, 2022 (the date the court will consider the motion) with oral argument requested. And for those who need a refresher on this entire TSR business, Morrus assembled "The Full & Glorious History of NuTSR" with a timeline of events.

 

[HomegrownHydra]

Just to be clear, do WotC's lawyers really have the current playtest document and the excerpts included in these legal filings are from the current playtest document that Lanasa is distributing to current playtesters?

I ask because after the manuscript was leaked a few months ago and the racism in it was first revealed, in order to claim that the leak was fake Lanasa posted an image (or was it a video?) of the manuscript that didn't have the ridiculous black subrace with the stat caps. Now obviously Lanasa deleted that part just before he posted, but if these are the current documents that means he left it in even after he claimed it wasn't there. So I want to be clear whether the WotC filing is using the leaked document or the playtest file.

 

[Abstruse]

Just to be clear, do WotC's lawyers really have the current playtest document and the excerpts included in these legal filings are from the current playtest document that Lanasa is distributing to current playtesters?

I ask because after the manuscript was leaked a few months ago and the racism in it was first revealed, in order to claim that the leak was fake Lanasa posted an image (or was it a video?) of the manuscript that didn't have the ridiculous black subrace with the stat caps. Now obviously Lanasa deleted that part just before he posted, but if these are the current documents that means he left it in even after he claimed it wasn't there. So I want to be clear whether the WotC filing is using the leaked document or the playtest file.

According to the legal filing, Exhibit E is from the playtest document obtained via subpoena from Don Semora of Wizard Tower Games.

It's my guess as to one reason why they requested oral arguments. The filing itself is a slam dunk on its own and wouldn't normally require oral arguments to back it up. But if LaNasa's lawyers try the "That's an old version, the current playtest doesn't have that material", they can then follow up by submitting LaNasa's social media activity as evidence of the likelihood any further drafts would be just as bad. Also, LaNasa would likely need to submit that complete updated draft as evidence that there's no offensive material in it. I'm also pretty sure if subpoenas have gone out to third parties, WotC's lawyers have sent quite a few to LaNasa's legal team.

 

[Saracenus]

Just to be clear, do WotC's lawyers really have the current playtest document and the excerpts included in these legal filings are from the current playtest document that Lanasa is distributing to current playtesters?

I ask because after the manuscript was leaked a few months ago and the racism in it was first revealed, in order to claim that the leak was fake Lanasa posted an image (or was it a video?) of the manuscript that didn't have the ridiculous black subrace with the stat caps. Now obviously Lanasa deleted that part just before he posted, but if these are the current documents that means he left it in even after he claimed it wasn't there. So I want to be clear whether the WotC filing is using the leaked document or the playtest file.

Ninja'd by @Abstruse.

Considering how opaque the whole playtest for SF:NG has been it would be hard to say what is the actual "current" playtest right now. If I were a betting man, my marker goes on the, "there hasn't been an actual updated playtest since the leak." To excise the excrement sandwich that is SF:NG of all the offending content would require actual work and a desire to actually create a real playtest document. That is, if "dime-store Voldemort" would actually want to excise the material in the first place.

This whole NuTSR has been a grift from the beginning. We know that the folks at Wizard Tower Games have the receipts from internal communications with "I cannot believe it's Voldemort" when they were working with NuTSR. One of which is "He who shall not be named" stating his parked on the TSR/Star Frontiers trademarks to get a settlement from WotC to make him go away. I believe the number was in the millions that he was bragging about.

The NuTSR house of cards is about to fall and then combust in a nuclear fire once this suite/counter suite hits actual trial. I don't think WotC is in the mood to settle. They are going to make an example of "Poor-man's Voldemort." Think of this request for an injunction as WotC destroying one of the plastic Horcruxes that he thinks is going to "protect" him. It was not nice knowing you Sir Voldy of Gritsville.

 

[Deset Gled]

I mean, that's horrible stuff - but is that from their REAL playtest document or from the spoof put out several months back?

Just to be clear, do WotC's lawyers really have the current playtest document and the excerpts included in these legal filings are from the current playtest document that Lanasa is distributing to current playtesters?

A guide to Star Frontiers editions:

Star Frontiers: Alpha Dawn - The original product from the original (real) TSR.

Star Frontiers: Knight Hawks - The first expansion from the original TSR.

Star Frontiers: Zebulon's Guide - The last edition from the original TSR. Intended to be the first in a trilogy of updates that was cancelled to make way for the Buck Rogers RPG.

Star Frontiers New Genesis: Rebooted - The first edition of Star Frontiers from NuTSR. They claimed that a small batch of copies was sold ~Jan 10th, but no real copies have ever been seen by the public. Only promotional images and video exist. No ISBN number exists. It was a small spiral bound book of ~50 pages, as would be printed from Office Depot or a similar small batch printer. According to the posted character sheet and comments from NuTSR, it was based on D20 Modern.

Star Frontiers New Genesis: 5th Edition - The second edition of Star Frontiers from NuTSR, first advertised ~Jan 31. Billed as "5th Edition" on the cover and by Justin LaNasa on Facebook. ISBN 9781734196139, 1734196130. Despite being heavily marketed by NuTSR, no real copy of this has ever been seen. All images are simulated.

Star Frontiers Not Genuine - A parody copy of Star Frontiers New Genesis released ~Feb 25 on itch.io and lulu.com. PDF and print-on-demand copies were briefly available, but were quickly taken down. Game content is based on OGL material from D20 Future.

Tsar Frontiers Not Genuine - A renamed and reworked version of Star Frontiers Not Genuine, released ~Mar 7 on DriveThruRPG (after Star Frontiers Not Genuine was removed from other sites). Originally available as print-on-demand, now only available as a PDF.

Star Frontiers New Genesis: Alarms and Journeys - Content from Star Frontiers New Genesis published in Alarms and Journeys, Vol 5, No. 1, Issue 13 on May 13th. Likely published for trademark purposes.

Star Frontiers New Genesis: N&N Edition - The "beta" version of Star Frontiers New Genesis that was created for TSR Con. Portions were leaked to Youtube and Twitter on ~Jul 19th. Named the "N&N" version for the light and dark skinned humanoid races detailed in the game. Contains extremely bigoted material, including racist, sexist, and anti-LGBTQ content. This is the version referenced by Hasbro/WotC in their Sept 8 request for an injunction against NuTSR.

Star Frontiers New Genesis: GDrive Edition - An informal release by NuTSR, when they posted a link to their unprotected Google Drive to Facebook on ~Jul 23rd. Not a complete book, but rather a sizable collection of files on game details including races, classes, and other game mechanics.

Star Frontiers New Genesis: Playing Cards - A limited edition set of standard playing cards with Star Frontiers New Genesis artwork on the back. Likely published for trademark purposes.

That's every known version I can think of. I'll update if anyone knows of any other versions.

 

[HomegrownHydra]

So then the question is when did Don get the manuscript that he gave to WotC's lawyers. Was it before or after Lanasa's claim that the black subrace rules were fake? And did he get straight from Lanasa?

 

[Abstruse]

Ninja'd by @Abstruse.

Considering how opaque the whole playtest for SF:NG has been it would be hard to say what is the actual "current" playtest right now. If I were a betting man, my marker goes on the, "there hasn't been an actual updated playtest since the leak." To excise the excrement sandwich that is SF:NG of all the offending content would require actual work and a desire to actually create a real playtest document. That is, if "dime-store Voldemort" would actually want to excise the material in the first place.

This whole NuTSR has been a grift from the beginning. We know that the folks at Wizard Tower Games have the receipts from internal communications with "I cannot believe it's Voldemort" when they were working with NuTSR. One of which is "He who shall not be named" stating his parked on the TSR/Star Frontiers trademarks to get a settlement from WotC to make him go away. I believe the number was in the millions that he was bragging about.

The NuTSR house of cards is about to fall and then combust in a nuclear fire once this suite/counter suite hits actual trial. I don't think WotC is in the mood to settle. They are going to make an example of "Poor-man's Voldemort." Think of this request for an injunction as WotC destroying one of the plastic Horcruxes that he thinks is going to "protect" him. It was not nice knowing you Sir Voldy of Gritsville.

The speculation for a while now has been that the entire thing is an attempt to extort a settlement out of Wizards of the Coast. In the text chain I saw, LaNasa said he expected to get $100 million, but in context I doubt it was completely serious. It had the tone of trying to hype themselves up more than an attempt to set accurate and realistic expectations. But considering it's LaNasa we're talking about, who knows?

But like I said, to have a legally enforceable trademark, you must use it commercially. That means for the case to work, they needed to sell something using the TSR and Star Frontiers trademarks. And it can't just be anything because trademarks are enforced narrowly (again, the goal is to prevent consumer confusion). McDonald's will often sue restaurants calling themselves "McDonald's" even if that's the owner's name, but they don't go after "McDonald's Plumbing" because they can't prove customer confusion - nobody's going to walk in angry that their Big Mac was actually a toilet fill valve.

Which means to claim the trademarks on Star Frontiers RPG and card game, he has to produce both an RPG and a card game and show intent to commercially release both. Now this is where my knowledge gets fuzzier, but I believe showing actual intent is enough - he wouldn't need to actually sell the item, just show that he was taking active steps to sell the item. Thus all the marketing posts and "Out of Stock" store pages and whatnot. It's the same thing as any other in-development product - companies can (and often do) trademark the names early in development to protect them before the product actually launches.

Again, this is pure speculation based on the evidence, but my guess: There was never an intent to release a product, just to look like they're releasing a product. When they didn't get an immediate offer to settle but started getting attention for being jackasses, they ramped it up to 11. "Better pay us off soon or everybody's going to associate TSR and Star Frontiers with racism, sexism, homophobia, and transphobia!" The playtest document likely came from one or more of three motivations: 1) An attempt to further the narrative they're actively working on a game, 2) An attempt to pander to the sort of toxic element that will throw money and anything that "pwns the libs", and/or 3) That's just the kind of thing they find funny.

And now they're kind of past the point of no return. Wizards of the Coast's legal firm is the sort of firm that makes international headlines for billion-dollar judgments and settlements. Of the five assigned lawyers, two of them are partners in the firm. One of those partners just entered the declaration of support that contained their playtest document. LaNasa set himself up to be made an example of, and that looks like exactly what they plan to do.

 

[Zardnaar]

If WotC loses this hari kari. Seems open and shut.

 

[see]

The answer to this is simple: they didn't let the trademarks lapse.

Mmm, that's debatable. WotC/Hasbro stopped selling its older books in PDF in early April 2009, and didn't resume until December 2012. That meets the statutory standard of three years' non-use in commerce for a presumption of abandonment. Combined with previously letting the registrations lapse, there's a pretty good argument for abandonment.

However, the resumption of PDF sales starts a new claim to all the marks as used then, which is why this filing specifically mentions the OneBookShelf sales starting in December 2012, predating any use by NuTSR.

If you dig into the nitty-gritty of abandonment and new use, there's really only one of the old trademarks that WotC/Hasbro might not have exclusive rights to anymore, which is the "TSR" word mark itself. In addition to letting the registration lapse and the period of non-use, WotC/Hasbro never challenged TSR2's registration or use of the mark. At the same time, TSR2 never challenged WotC/Hasbro's use on PDF sales, and eventually let their own registration lapse. And the two never seemed to have negotiated any sharing arrangement. There is accordingly a case to be made that the "TSR" word mark (but not any of the specific TSR logos) is no longer a valid trademark.

And at least as far as I've seen in these filings (maybe I've missed some), WotC/Hasbro actually hasn't claimed the "TSR" word mark against NuTSR use. WotC/Hasbro's lawyers have, as best I can see, been pretty meticulous about only claiming exclusive rights to marks for WotC/Hasbro where those are solidly grounded in actual use since the resumption of PDF sales. On the "TSR" word mark, the WotC/Hasbro lawyers simply pointed out that NuTSR doesn't have the grounds to claim exclusive rights to the mark.

 

[Abstruse]

If you dig into the nitty-gritty of abandonment and new use, there's really only one of the old trademarks that WotC/Hasbro might not have exclusive rights to anymore, which is the "TSR" word mark itself. In addition to letting the registration lapse and the period of non-use, WotC/Hasbro never challenged TSR2's registration or use of the mark. At the same time, TSR2 never challenged WotC/Hasbro's use on PDF sales, and eventually let their own registration lapse. And the two never seemed to have negotiated any sharing arrangement. There is accordingly a case to be made that the "TSR" word mark (but not any of the specific TSR logos) is no longer a valid trademark.

And at least as far as I've seen in these filings (maybe I've missed some), WotC/Hasbro actually hasn't claimed the "TSR" word mark against NuTSR use. WotC/Hasbro's lawyers have, as best I can see, been pretty meticulous about only claiming exclusive rights to marks for WotC/Hasbro where those are solidly grounded in actual use since the resumption of PDF sales. On the "TSR" word mark, the WotC/Hasbro lawyers simply pointed out that NuTSR doesn't have the grounds to claim exclusive rights to the mark.

Wizards of the Coast could make an argument for continued use of the word mark as they used the TSR logo up until 2000 prior to the launch of 3rd Edition and issued multiple reprints of classic works, either as digital PDFs in the case of a few classic adventure modules or as collectors sets for Chainmail and the three previous editions of Dungeons & Dragons (Basic and 1st and 2nd Ed AD&D). However, neither side has brought up Jayson Elliott or TSR2/Solarian at all which is interesting. I'm sure Jayson's sitting in a circle of salt hiding under a blanket saying "Please don't notice me please don't notice me I escaped out of all this already please don't notice me..."

 

[Steampunkette]

Wow. This stuff is so insanely insensitive it almost sounds like some kind of parody. Who in their right mind would put this into print thinking "yes, these are statements that strangers on the internet will find agreeable enough." It's no wonder WotC wants to make it clear they have nothing to do with this stuff, that's just reasonable brand management.

When you grow up surrounded by bigotry and make it a part of how you view the world you still have to moderate yourself around some people... at least at first, just to be polite. But you also know in your heart of hearts that they see the exact same way you do. How could they not? It's just how things really are when you stop trying to pretend it isn't, stop trying to be polite... So the bigotry ekes out at first, and then runs in a deluge.

That's why bigots used to talk about "Being Politic" and eventually "Politically Correct" and then "Woke". Because to them it all means the same thing:

You're lying about how you -really- feel, about how things -really- are, to avoid confrontation like a coward.

It's a mindbogglingly ignorant mindset that involves explicitly and expressly being unable to sonder about other people.