The year was 1971, and Ralph Anspach, a San Francisco State University economics professor, was sitting in his Berkeley home, playing Monopoly with his seven-year-old son. But his mind was not on the game.
"OPEC was just flexing its muscles," Anspach recalls, "so we were talking about the oil crisis. I made some comment about those darn monopolists, and my son said, 'Well, what's wrong with being a monopolist anyway?' I had trouble answering. I realized that we'd just been playing Monopoly." The next day, Anspach set out to buy a board game that would show his son some of the problems with monopolies. "I looked around," he says, "but there was nothing available. That's when I decided to put out a game that would be as much fun as Monopoly but would also teach something about the advantages of a competitive economy."
Anspach called his game "Bust the Trust, the Anti-Monopoly Game." When his students and friends told him "Bust the Trust" sounded like robbing banks or breaking confidences, he shortened the name to "Anti-Monopoly."
And that was how it all began. Within two years, Anspach and his fledgling company, Anti-Monopoly Inc., were embroiled in a trademark battle that dragged on for nearly a decade. When the dust finally settled the controversy had brought forth a landmark decision with mind-boggling implications for the entire business community -- a decision that called into question the very idea of trademarks and brand names. And Ralph Anspach hadw on.
The immediate loser was Parker Bros., a General Mills Inc. division based in Beverly, Mass., and the country's leading producer of board games. Since acquiring the rights to Monopoly in 1935, the company has stamped out more than 80 million game sets -- and more than 2.6 billion of those little green houses that generations of Monopoly mavens have enjoyed stacking up along Boardwalk and Park Place. The game is now published in 31 countries and 18 languages, including Arabic.
Over the years, Parker Bros. has gone to reat lengths to protect its monopoly on Monopoly, and it was not about to make an exception for Anspach. He had hardly begun marketing Anti-Monopoly in 1973 when the company shot off a couple of hellfire-and-brimstone letters, threatening legal action if he did not stop using the name. Anspach shrugged them off
Not that he was oblivious to the problem. As it happened, he had consulted with two different trademark attorneys before settling on the name Anti-Monopoly. Both had told him that the owner of an existing trademark cannot claim infringement by a competitor if the name of the competitor's product is the opposite of an existing trademark. Such, Anspach concluded, was clearly the case with Monopoly and Anti-Monopoly.
In any event, Anspach had other business to attend to Anti-Monopoly was moving well -- it had sold out in San Francisco -- and he had hired a distributor to handle the game nationwide. Word came back that store buyers were "going crazy" over Anti-Monopoly. "We'll sell a million copies!" the distributor predicted.
But then it all turned sour. A rumor began to circulate that Parker Bros. was going after Anspach for violating its trademark. Concerned that a judge might block them from selling the games they purchased, wholesalers grew reluctant to place new orders. Anspach's attorneys contacted Parker Bros., which confirmed that, yes, a suit was being prepared.
They tried to work out a compromise. Would Parkers Bros. forgo legal action if Anspach changed the name of his game to "Anti-Monopolist?" No dice, the company responded. What about "AntiMonopoli" or "Anti-Monopolism?" Forget it, came the reply.
What if Anspach agreed to print a disclaimer of Parker Bros's choosing on all Anti-Monopoty boxes?
Parker Bros. turned thumbs down to that idea, too.
A legal battle seemed unavoidable. Anspach's attorneys advised him to file suit first, locally, in order to keep expenses down. On March 6, 1974, he did just that, asking the U.S District Court for the Northern District of California to declare the Monopoly trademark invalid.
For the next nine years, the battle raged over the name. Along the way, Anspach filed two more lawsuits, accusing Parker Bros. of violating antitrust laws and alleging unfair competition. He also turned down Parker Bros.'s offer to settle the case for $500,000 -- a figure Anspach considered ridiculously low. After all, he had been selling more than 200,000 Anti-Monopoly sets per year (at $3.60 a set wholesale) until told by the court to stop.
Besides, Anspach believed he was going to win. "Everybody was pretty well agreed," he says, "that no jury is going to think Anti-Monopoly can be confused with Monopoly. You have to have a very special legal mind to come up with anything as asinine as that."
Asinine or not, U.S. District Court judge Spencer Williams twice ruled that Anti-Monopoly violated Monopoly's trademark. To Anspach's relief, however, the U.S. Ninth Circuit Court of Appeals twice overrode the decision, and the case moved on to the U.S. Supreme Court. On February 22, 1983, the high court formally declined to take up the dispute, there-by letting stand the circuit-court ruling.
That ruling was a clear-cut victory for Anspach. The court declared that "Monopoly" had become a generic term and, consequently, was no longer a trademark. Ergo, Anspach could start making and selling his game once again.
But the decision did more than break Monopoly's monopoly on its name. As Parker Bros. noted in a prepared statement, it turned trademark law "upside down." For the first time, a federal court held that, for a trademark to remain valid, it must denote primarily the source of the product, not the product itself. "That," says Robin A. Rolfe, an attorney and executive director of the United States Trademark Association in New York, "is the part that scares everybody."
Traditionally, trademarks have been lost when people began using the word to refer to more than one product. Aspirin and cellophane are prime examples (see sidebar) To a certain extent, companies can protect their trademarks from such a fate by doing everything in their power to make sure that consumers identify the trademarked name with the specific product in question. Conversely, a company could lose a trademark by failing to do enough to protect it. For that reason, Xerox Corp. regularly takes out ads reminding readers that "whether you want a certain soft drink or a certain copier, you want to be sure that what you get is the real thing." And The Coca-Cola Co. has been known to sue restaurants that serve other soft drinks to customers who ask for "Coke."
Parker Bros., too, had been diligent in defending its Monopoly trademark, and the court did not contend otherwise. Rather, it simply bought what Anspach's attorney, Carl Person, was saying about Monopoly -- namely, that consumers used the term to refer to the game, not to its manufacturer. To prove his point, he introduced into evidence an opinion poll in which consumers were asked whether they had bought a Monopoly set because they liked the game, or because it was made by Parker Bros. Sixty-five percent said they were motivated to buy Monopoly because they wanted to play the game, not because it was produced by a certain company. And the Ninth Circuit Court took that as proof that Monopoly had become generic. "It is the source-denoting function which a trademark protects," wrote the court, "nothing more."
Surveys or opinion polls aren't new to trademark law, but the Monopoly survey sought to measure the reasons consumers purchase a product, and that is why trademark attorneys are upset. They do not like the idea of motivation surveys one bit, because motivation surveys will make it difficult, if not impossible, to defend such well-known trademarks as Cheerios, Dr. Pepper, Jell-O, Band-Aid, Tide, you name it. Indeed, just about any trademark could be in jeopardy -- provided a challenger can show that people identify the name with the product, and not the company that makes it. In many cases, that would be quite easy to do.
"If you ask someone why he buys Tide detergent, it's not because he loves Procter & Gamble," says Marie Driscoll, a lawyer in New York. "He buys it because it does a good job washing his clothes. The court thinks that would be reason [enough] to declare Tide generic. The court is wrong."
Maybe so, but the courts determine the law. The key question, then, is whether other courts will follow the Ninth Circuit Court's decision. Of course, some courts have to follow the decision -- namely, those operating in the Ninth Circuit, which covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Elsewhere, the issue is not so clear.
"The decision, if it is followed by courts throughout the country, will be of extreme importance," says Arthur J. Greenbaum, a partner in the law firm of Cowan Liebowitz & Latman in New York City, "because it sets forth a view which will doom many famous trademarks. We have to see whether or not other courts throughout the country will follow it. The United States Patent and Trademark Office has already taken the position that they will not follow the case. That's been done formally and publicly in a brief whichwasfiled."
In the meantime, the fight between Anspach and Parker Bros. continues. The case is still in U.S. District Court in San Francisco, where the antitrust and unfair competition charges brought by Anspach against the game manufacturer have yet to be tried. While he waits for a trial date to be set, Anspach is teaching economics, and, in his spare time, hawking his game. As for attorney Carl Person, Anti-Monopoly's lawyer, he has bigger plans. At last report, he was taking Universal City Studios Inc. and Merchandising Corp. of America Inc. to court -- to challenge its trademark on E.T.
CORRECTION-DATE: February, 1984
In "The name of the game" (News & Trends, September 1983), we listed Berol Corp. as owner of the registered trademark Magic Marker; in fact, the owner is Magic Marker Industries Inc.