Hi, and welcome back to Legal Geek. This week, we review a lawsuit filed that could pit two of the top tabletop game companies against one another over the wildly popular Great Western Trail board game.
A few weeks ago, Stronghold Games, which is owned by Indie Game Studios, sued Plan B Games in Indiana federal court for a number of claims. Stronghold is known for games like the Terraforming Mars series. Plan B Games is a quick riser in the tabletop field, releasing top hits like the Century Spice Road series of games as well as Coimbra and Reef last year.
The game in controversy is Great Western Trail, which is currently ranked in the top 10 of the industry site BoardGameGeek's top game rankings. According to the Complaint filed by Stronghold, they contracted with German publisher Eggertspiele to be the exclusive distributor of this game in the U.S. and Canada in 2016 for a period of time that was to extend through the end of 2018. The first print run sold out quickly, and Stronghold sought more copies from Eggertspiele to sell. Those copies were never provided, as in the middle of 2017, Eggertspiele was acquired by Plan B Games.
Plan B Games then brought out their own print run of Great Western Trail in early 2018, and the game continued to sell very well. Stronghold is filing this suit because it allegedly missed out on the opportunity to sell this highly popular game thanks to the actions of Eggertspiele and then Plan B.
What's interesting about this case is the type of claims made by Stronghold. Instead of breach of contract, as you might expect, Stronghold is claiming trademark infringement and unfair competition by Plan B Games, as well as conspiracy with Eggertspiele to deny Stronghold the benefit of the deal. The conspiracy claim is a bit far-fetched and thrown in at the end, so for today's segment lets focus more on the trademark-type claims.
The Complaint sets out in great detail how Stronghold marketed the Great Western Trail game in advance of the initial print run being sold. Stronghold is making the case that these marketing efforts and their sales in the marketplace generated common law trademark rights automatically that then were infringed when Plan B Games brought out the same game without permission from the alleged trademark holder.
There is case law in the U.S. on cases involving exclusive distributors and generation of trademark. If it's not covered by the contract between the game manufacturer and the distributor, then it's not automatic that selling the game results in a trademark right for the distributor. Instead, courts apply a rebuttable presumption that the manufacturer retains the trademark rights, with a multi-factor test to determine if the presumption can be rebutted in favor of the exclusive distributor. These factors can include things like which party created the mark, which party first affixed the mark to the goods, which party paid for promotion of the goods, and which party's name appeared on packaging, among other things.
So it's not a slam dunk that Stronghold created any trademark rights here to enforce against Plan B. The fact that this is not a breach of contract claim is interesting because it likely means the contract does not read how Stronghold wants it to, meaning going after Eggertspiele, or Plan B if they can be assumed to take on this contract, is not a viable option. So Stronghold is making a claim that thinks "outside the box" and looks like it has merit on its face, even though the legal standards in the U.S. will make this an uphill battle in all likelihood for Stronghold.
The Bottom Line is: when making deals to sell products from a manufacturer, you have to be absolutely sure the contract is done right. Otherwise, in a worst-case scenario like this one where the product is wildly popular and the manufacturer gets bought out by another company, you may have to stretch your legal theories to try and exact revenge for losing the benefit of the deal. I expect this case will likely settle out of court, but we will keep an eye on it because the claims made are so unique to this situation, and it could have long-lasting effects on these two big players in our beloved board game field.
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