by Mary Pilon
“Well,” Esposito said. “The nature of the article—I deal with a lot of personalities in it. They’re people. I like to round off the personalities to present—you know, Mr. Anspach is a professor. You are a lawyer. The Judge is a judge.”
“Some days, Mr. Esposito, some days,” Daggett said. He continued. “Have you written anything in draft form on Mr. Anspach’s charge that Mr. Robert B. M. Barton is guilty of fraud?”
“No,” Esposito said.
“You haven’t written anything about that?”
Esposito shook his head no.
“What have you drafted respecting Anti-Monopoly and Monopoly?”
“I talked to Mr. Anspach at length about his depositions,” Esposito said. “His investigations into, you know, the history of Monopoly, what he uncovered as the history of Monopoly, stated as such. I wrote that up. But I haven’t really finalized it yet. I have also written an introduction to my article. That’s about the size of it.”
“Have you written in draft form anything which even refers to Mr. Anspach’s fraud charges?”
“Which charges?” Esposito asked.
“The charge that Mr. Barton fraudulently promoted Monopoly relative to a patent, for example?”
“No,” Esposito said.
They wrapped for the day. Ralph was feeling more optimistic about his chances.
In a boost to Ralph’s spirits, his family was planning to attend the trial every day. His sons roamed the halls to eavesdrop, hoping to pick up scuttlebutt from the enemy. Many of the older game players had flown in to California, and there were happy reunions in the hallways of the courthouse among friends who hadn’t seen each other in many years. Everyone was determined to have the whole true story of Monopoly finally told.
The testimony from nine of the game’s early players occupied most of the proceedings. Ruth Raiford took the stand to describe how she had taught Charles Todd, and helped to teach Charles Darrow, the game; Daniel Layman testified about Finance and his game-playing days at Williams College; a still-angry Charles Todd told of his friendship with Darrow and their many monopoly nights together; and friends of the Thun brothers and others testified that they had played the game at Wharton and other elite institutions. Eagerly, the press took notes.
Perhaps the most dramatic moment of the trial came when the silver-haired Robert Barton took the stand and reiterated the points he had made in his deposition in Boston. He conceded that Darrow was not the originator of Monopoly and that Parker Brothers had bought up all the competition. But such was the nature of doing business, he said. Cameras clicked as the stoic figure sat in the witness chair and testified how uninterested he had been in Lizzie Magie’s original game.
Another market researcher testifying for Parker Brothers stated that some 15 percent of those surveyed were confused about the difference between Monopoly and Anti-Monopoly.
“Do you consider your findings significant?” Daggett asked.
“Oh, yes,” he responded.
Ralph rolled his eyes, and took the stand as a rebuttal witness.
“Mr. Anspach,” Daggett said, beginning examination. “You are intimately familiar with what has occurred in this litigation leading up [to] the trial, aren’t you?”
“Yes, sir,” Ralph said. “Intimately familiar” didn’t even begin to describe it. The game and the case had taken over his life. It was all he could think about, day or night.
“You have sent your attorneys to take depositions in New York, haven’t you?”
“Yes.”
“You have sent your attorneys to take depositions in Washington, D.C.?”
“Yes.”
“You have sent your attorneys to take depositions in Augusta, Georgia?”
“Yes.”
“Philadelphia, Pennsylvania?”
“Right.”
“Salem, Massachusetts?”
“Right.”
“In Rochester, Vermont?”
“Yes.”
“In Baltimore, Maryland?”
“Yes.”
“Arlington, Virginia?”
“Yes.”
“And Springfield, Massachusetts?”
“Right.”
“So when you reportedly told Randy Bienenstock you couldn’t afford to go to Madison, Wisconsin, you were lying?”
“I certainly was not,” Ralph said. The litany of places could not have taken more than a few seconds to recite and were a reminder of what an exhausting hunt the last few months had been for Ralph, a blur of starched hotel linens, naps on airplane tray tables, rental cars, notes jotted on napkins, bleary-eyed walks through San Francisco International Airport. “Incidentally, the charge for sending my attorney went on both my American Express card and Diner’s Card [sic] on the 12-month payment plan.”
The attorneys launched into their closings. Both sides were sick of the litigation and eager to end years of madness.
Dreyfus began by saying that Parker Brothers dealt with Monopoly “almost as an icon, almost an object of worship.” He continued, “Mr. Barton spoke with some awe from the stand of his belief that nobody had challenged it for 40 years, the trademark Monopoly.”
Dreyfus went on to say that the trial was about the truth and the right to compete, a right that he and Ralph considered to be as precious as democracy itself. If history couldn’t get the story of Monopoly correct, what hope was there for anything else? And if he, Dreyfus, couldn’t get the ethics of a board game right, what chance did he have in cases for clients such as Daniel Ellsberg or Eldridge Cleaver?
“A trademark is a privilege, a privilege protected by the Government,” he said. “It is a crutch. It is a—well, it is sort of a governmental subsidy that permits somebody who owns one to be free from the competition in the marketplace. He doesn’t have to worry about that—he has a monopoly.
“Here, we have a monopoly on the word monopoly, a word in ordinary, common usage, Your Honor. And it is not the law. The cases that we have given Your Honor show there is no favor by the law upon the use and maintenance of such a trademark. It is not in the public interest. There is an overriding public policy to the contrary to permit ordinary words to be used by people to whom they belong generally.”
Dreyfus then began to read from a letter that Parker Brothers had sent to the makers of Theopoly, asking them to discontinue publication. Among the items the company objected to were “‘panels entitled indulgence, penance, actual sin, original sin, baptism, limbo and purgatory,’” Dreyfus read. “‘We also ask that on the Hell panel you use some other term in place of “just visiting.”’”
Parker Brothers was literally trying to assert its control over words as old as the Bible, Dreyfus went on. Should the company be allowed to go on unchecked, there was no telling what it would lay claim to next.
The makers of Theopoly “had a game that should have been allowed in competition, Your Honor,” Dreyfus said. “And shouldn’t have been threatened by a trademark that is not in the public interest. Now I don’t—I can’t represent to the Court that we have established fraud in the obtaining of the trademark in the strict sense that the cases prescribe. We have not.
“Right from the very beginning, Mr. Barton was candid enough to tell us he didn’t believe the story that [the game] had been invented by Mr. Darrow. And almost immediately, within a week, he sought a lengthy history from Mr. Darrow in Mr. Darrow’s handwriting to establish and buttress the story that he didn’t believe.”
Dreyfus wasn’t done. He reminded the court about Rudy Copeland, the early players of the game, and Parker Brothers’ efforts to buy out any and all competition. “It is in the public interest to encourage a challenge to a trademark,” he said, “particularly one that has become generic.”
He to a survey referred conducted regarding words that were now in the public domain. “Look what happened to aspirin, cellophane, thermos bottle. All those, Your Honor, were trademarks; and not only that, they were highly regarded, protected trademarks because they we
re invented words. They didn’t have any common meaning at all. They didn’t depend upon a secondary meaning.”
Dreyfus said that Ralph had acted in good faith and had made no effort to make his box look the same as Monopoly’s. His was the type of competition that the American economy should encourage. “The Court ought to send this brave little entrepreneur out with the Court’s blessing to pursue his commercial enterprise … against, Your Honor, what seems to be overwhelming odds,” he said. “The odds against him are great enough without their seeking the intervention of the Court.”
The mood in the courtroom was anxious and anticipatory as Daggett stood up and began his closing remarks, which were characteristically blunt.
“Mr. Dreyfus’ conception of the trademark law is dead wrong,” he began. “Mr. Dreyfus implies that this is a patent case, not a trademark case. And I want to contrast those two bodies of law in their general reach.”
“Now,” Daggett continued. “Trademark limits itself to saying do whatever in the world pleases you, but don’t do it with anybody else’s name.”
Daggett argued that since the Monopoly trademark had been in effect for many years, it had become incontestable unless fraud could be shown, which Ralph could not do. The testimony from the Quakers and other witnesses had been intriguing, but it did not prove fraud in the legal sense.
“I say nothing further about that,” Daggett said, “beyond pointing out that the statute doesn’t say unclean hands; it says fraud.”
Then Daggett argued against the name “Monopoly” having become generic.
The Anti-Monopoly team had cited the dictionary definition of “generic,” which defined it as either “relating to or characteristic of a whole group or class” or “being or having a nonproprietary name.” Daggett countered that a word had “to be the common, descriptive name of an article … The most graphic test for the statutory requirement, I think, is this: if a word is generic and, nevertheless, enforced as a trademark, you deprive every seller in the marketplace of the right to call his product what the public calls it, except the one who’s got the trademark. And that’s not right.”
Daggett further argued that there was only one Monopoly game and that other real-estate-trading board games were being sold all over the place under names that did not infringe on the Monopoly trademark. Even Ralph had “started with Bust the Trust” until “his ship caught fire and sank,” he said.
“If Mr. Anspach is honestly wrong, a subject of which I will not discuss further in his presence,” Daggett said, “if he is wrong and there is a likelihood of confusion, then I think the law of the United States calls upon Your Honor to send Mr. Anspach out that door with the best wishes and encouragement of the Court to carry on in his business—however, using somebody else’s name, not mine.”
Daggett was done. But before leaving, he said that he had a photocopy of every case cited in the trial brief that he no longer needed. Judge Williams said to leave them with him.
“Another example of they have more money than we do,” Dreyfus said.
“Sympathy,” Judge Williams said, “has no place for consideration in this court.”
Parker Brothers and Ralph began their painful wait for a verdict. With his fate in Judge Williams’s hands, Ralph feared that even though he had succeeded in telling the story of Lizzie and the Quakers in court, he still risked losing everything.
Judge Williams ruled that Anti-Monopoly had indeed infringed upon Monopoly’s trademark and ordered Ralph to “deliver up for destruction” any remaining copies of Anti-Monopoly. Barton and Daggett were elated, Anspach and his team crushed.
THE BURIAL
“It may be that all games are silly. But then, so are humans.”
—ROBERT LYND
Typically, when a company wins an injunction, the acquired goods are stored in a warehouse until the court proceedings are completely over. However, Parker Brothers decided that it needed to show its strength and teach other potential Monopoly makers a lesson.
On July 5, 1977, with a handful of journalists witnessing the scene, representatives from Parker Brothers buried approximately forty thousand Anti-Monopoly games in a landfill in Mankato, Minnesota. By burying the games, the firm was showing its utmost confidence in its victory. Should Ralph appeal his case and win, Parker Brothers would have to hand over the games. By dumping them into the earth, the firm made it abundantly clear that it thought Ralph had no chance. Under the circumstances, that belief was not unfounded.
Ralph had flown to Mankato to watch the spectacle with his friend Russ Foster, who lived in Minnesota. The two men shook their heads, feeling helpless. What a waste it was. A reversal in court was still possible, but the burial was humiliating.
Ralph had acquired a mountain of debt, his family’s patience was frayed, Dreyfus would be leaving the case, and now even the physical evidence of much of his hard work and what he was fighting to produce was gone.
•
In a small, cluttered office tucked into one of Lower Manhattan’s windy, cavernous streets, the phone rang. It was Ralph, calling for Carl Person. One of Ralph’s lawyers had mentioned that Person was an antitrust attorney whom he admired. Person was also the attorney for Christian Thee, the designer who was suing Marvin Glass over his claim to an art auction game he called Artifax, which he said Marvin Glass had sold as Masterpiece.
Ralph had become aware of a linchpin argument in Judge Williams’s ruling against him that made the Anti-Monopoly case ripe for appeal. If he and his team were reading the ruling correctly, the judge had misinterpreted an aspect of trademark law, opening the door for another trial. The key issue: When a trademark becomes the name of a product, rather than an indicator of its producer, it loses its significance. And when a consumer saw Monopoly on a store shelf, Ralph and his team believed, it was the name of the game, not the Parker Brothers imprint, that compelled him or her to buy it. Williams had decided otherwise and made several fact-finding errors. In terms of legal reasoning, Williams set up a situation in which Monopoly would be treated like Aspirin, a trademark that had slipped into the public domain. But if that was true, then Anti-Monopoly could not be infringing on Monopoly.
Ralph briefed Person on the case. After Judge Williams’s ruling, he had embarked on an exhausting excursion through the California court systems, and he had already won one victory in an appeal decision on genericness as an issue (other arguments were not discussed). Ralph felt he now had the right to dig up his games and wanted to take the case further. For that he needed a long-term lawyer who was willing to take on a complicated case that had no shot at a jury trial. The lawyer also had to be willing to work on a contingency basis.
Person was intrigued. The two agreed to meet in San Francisco.
When they did, Ralph wondered if the man before him was indeed the Harvard Law School graduate who had taken on manufacturing titans, or someone else from New York City’s shadier corners who had somehow made his way onto the plane. Person did not look the part. His hair was in disarray and his ill-fitting suit was a decade or more out of fashion. When he opened his briefcase, a rainfall of papers fell out. I’m lost, Ralph thought.
But what Person lacked in presence he more than made up for in legal intensity. The two went out for dinner and discussed the Anti-Monopoly case in greater detail. Person was willing to take the case, but on one condition. He wasn’t a trademark lawyer and didn’t have a fleet of other lawyers or paralegals working for him, as did his counterparts at large firms. If he was to take the Anti-Monopoly case, Ralph would have to be his paralegal and clock even more hours on the case than he already had. Confident that his legal abilities had stood him in good stead thus far, Ralph was happy to oblige. He was grateful that Person was willing to take the case at all.
Before long, Carl Person became a regular at the Anspach home, often working with Ralph in the living room until two A.M. From time to time, Person would become discouraged, but Ralph would cheer him up, and the two struck up a friendship s
imilar to the one that Ralph had shared with John Droeger.
Ralph also spent a lot of time working with Person in New York City, with Person and his wife often hosting him on the couch of their Upper West Side apartment. Person had an uncanny ability to nap while sitting up and could program himself to fall asleep or wake up when he wanted. Watching him snap in and out of consciousness was one of the strangest things that Ralph had ever seen, but it helped to explain how Person was able to juggle his incredible workload.
•
In January 1980, almost three years after the forty thousand Anti-Monopoly games had been buried, Ralph returned to the landfill in Mankato, Minnesota. He wanted his games back. With him, again, was his friend Russ Foster.
The press and a handful of spectators were also there. Perhaps out of a natural unbridled optimism, perhaps out of a sense of having reached the point of no return, Ralph had enthusiastically promoted the exhumation, dubbing it an “archeological spectacular.” He had a purpose and a shovel.
Despite the harsh winter weather, all that Ralph was wearing was a tissue-thin trench coat, gloves, and a cotton hat, which was failing to keep his wild, wavy brown hair out of his eyes. As the wind whipped around him, pieces of garbage that weren’t frozen to the ground occasionally fluttered up and hit him in the face. Russ lumbered a few feet in front of him, a dark, bearlike figure in a heavy fur-lined coat, topped off with a coordinating hat fit for Siberia. Ralph and Russ kept their heads down and their noses low to avoid inhaling the odor of the rotting matter around them. Peculiarly enough, even though most of the refuse was frozen, it still emitted a suffocating stench.
The onlookers stood several feet away, watching the duo as they traipsed through the refuse. But as time ticked by and nothing happened, they trickled off one by one, accompanied by the sound of engines sputtering back to life as their tanklike cars slowly pulled away.
Resurrecting the buried treasure had sounded simple when Ralph had spoken about it on the phone with Russ. But it was a much more difficult project to execute than he’d anticipated. The search team roamed over the vast, rotting terrain. And roamed. And roamed. Six hours passed. It was hopeless.