Can Trademark Law Stop a Racist Video Game?
An otherwise mundane motion for an injunction filed last week in a Seattle federal court opens with this startling sentence: “Defendants' to-be-released Star Frontiers New Genesis game contains despicable content including blatantly racist and transphobic content.” The kicker is that the litigation concerns not discrimination but trademark infringement.
Even among those of us who've taught intellectual property law, the case would be dry and technical — except for the allegations about the viciously intolerant content of the new game. Again, let's quote the motion for an injunction:
“The game … contained alarming content: stating, for example, that ‘races in Star Frontiers New Genesis are not unlike races in the real world. Some are better at certain things than others, and some races are superior than others.' ... A ‘negro' race is described as a ‘Subrace' in the game and as having ‘average' intelligence with a maximum intelligence rating of 9, while the ‘norse' race has a minimum intelligence rating of 13.”
The motion also alleges that New Genesis “describes ‘latent issues' with certain races like ‘blacks having issues with sickle cell enemia [sic] and with family issues'” and that the game “includes a specific gender option for the characters ‘Male/Female no bonuses, and no Trans.'”
Okay, there's lots of offensive stuff here. But it any of it actually relevant trademark law?
In this case, yes.
The movant is Wizards of the Coast, best known as the distributor of the venerable role-playing game Dungeons and Dragons. Wizards obtained the rights to D&D (as it's known) through the 1982 purchase of a company called TSR. Among the products TSR offered was Star Frontiers, another tabletop role-playing game. The case
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