The Monopolists Page 13
Rubin filed lawsuits often, so the idea of escalating tensions between a client and an opponent was nothing new for him. And as for Ralph, the reality of being ensnared in a legal battle with one of the world’s largest conglomerates hadn’t quite sunk in yet. Legal bills were not much of a concern for Parker Brothers and an even smaller concern for its behemoth parent company, General Mills. For the Anspachs, however, even modest legal bills risked crimping the household cash flow. Still, realizing that if they struck first, they could secure California as the venue for the case and thus save on travel expenses, Ralph and his team formally filed against Monopoly. The legal showdown between the rival board games had officially begun.
Soon thereafter, Parker Brothers asked Ralph for a sworn deposition. Assuring Ralph that all he had to do was stick to the truth, Rubin nonetheless warned him to watch out for tricky questions. The Parker Brothers lawyers might try to trap him into saying something that could be held against Anti-Monopoly. Ralph gulped, beginning to sense what he was up against.
•
The litigation tactics of Parker Brothers counsel Robert Daggett (no known relation to the early monopoly game players Pete and James Daggett) were fierce enough to earn him the nickname Bulldog. An accomplished, rotund man of average height who enjoyed a good drink, Daggett was a star at Brobeck, Phleger & Harrison, one of the largest and most powerful law firms in San Francisco and the nation.
On the day of the Anti-Monopoly deposition, Daggett was well prepared. He had joined forces with Ollie Howes, the lawyer who had written the threatening letter to Ralph. Despite Howes’s aggressive correspondence, Ralph was surprised to find that in person, he had a mild demeanor. Also on the Parker Brothers team was Richard Berman, counsel for General Mills. A cloud of tension hung over everyone even before they entered the conference room. Only days earlier, Howes and Ralph’s attorneys had butted heads in written correspondence and in phone calls.
Ralph found himself in Daggett’s austere but imposing offices that felt so foreign compared to his own homespun headquarters. And the triumvirate of lawyers in their crisp pressed suits were intimidating. Ralph, hair a mess, was wearing his usual rumpled shirt.
He was determined to act as if he were perfectly at ease, but deep down, he was concerned, and not just about the deposition. That night, he had a flight to catch to Minnesota, where he was intending to meet with game distributors and Anti-Monopoly’s new manufacturer. He had been planning to head straight to the airport after the deposition, but now he was wondering how long the deposition might take and if he might miss his flight.
In a large conference room, Ralph took a seat beside his pleasant and plump counsel, Herb Rubin. On the other side of the huge table sat the row of Parker Brothers attorneys. Ralph raised his hand and took an oath before a notary. Then he pulled out his secret weapon: a chopped liver and onion sandwich. Its stench invaded the air as he unwrapped it and began to chew. Pickles and a soda were also involved.
At twelve forty-five, the deposition began and Howes led the questioning. Nerves frayed, Ralph knew that one slip, one discrepancy, was all the Parker Brothers lawyers needed to destroy his whole case before it even began.
Ralph started to describe his twelve years working as an economics professor at San Francisco State. But within seconds, Howes stopped him to ask about his other employer: Anti-Monopoly.
Ralph told him how the game had begun. He explained about his wife Ruth’s background in child psychology and how that had helped him to develop the testing of the game. He told of his plans to set up an Anti-Monopoly foundation and said that before creating the game, he had had no marketing experience in the game industry. He mentioned his posse of Anti-Monopoly assistants, pleased by the thought of their unconventional roots. “It’s a young group,” he concluded.
Then Howes asked Ralph about the Computer Industry Association. Ralph had purchased advertisements in one of its publications. The association also took game orders and wrote about Anti-Monopoly in its newsletter. “When they heard about this game,” Ralph said, “they thought that this is just the kind of game that would be useful in awakening the American public to the evils of monopolism.” This was the first of many left-wing political jabs that Daggett, Howes, and Berman would hear from Ralph that day.
The professor went on to state that early Anti-Monopoly sales had been strong and that he’d sold out his first production run in a matter of days. He’d been expecting to sell yet more games when he hit a snag in production. “Well, in some cases, we ran into, I don’t know what the legal term is, interference, apparently by people from General Mills Fun Group,” he elaborated.
The name of a game buyer in New York came up, and Ralph said that he had heard from him and others like him that Parker Brothers was threatening them, warning them about potential legal problems involving Anti-Monopoly.
“I recall in one conversation I asked [the game buyer] the same kind of questions you are asking me now,” Ralph said, as he tried to find out more about why his game was encountering hiccups. “But he responded that he did not want to discuss it further because he was afraid of harassment and so on.”
“Has he been approached by anyone at Parker Brothers?” Howes asked.
“I don’t know,” Ralph said. “But he indicated to me that he was afraid and he was afraid of giving names to other people.”
“How did he indicate that he was afraid?”
“He was afraid,” Ralph said, “because people had told him certain things in the industry and he was afraid that if his testimony to me were traced to his having passed on some of this information, that he could get in trouble with some of the people with whom he deals. You see, I am afraid, when an industry becomes monopolized, it is easy to get an atmosphere of this kind started.”
The Parker Brothers attorneys were now about two hours into their grilling, and Ralph still had plenty of time to catch his flight to Minnesota. The pungent aroma of liver and onions still hung in the air.
At some point during the deposition, Berman, the trademark lawyer for General Mills, leaned back in his swivel chair, and Ralph caught sight of an airline ticket poking out of his pocket. It was the same, distinctive color as the ticket Ralph had and he knew that Berman had plenty of reason to be booked on the same flight to Minnesota, where his company was headquartered. The last thing Ralph wanted was to sit on the same plane as his rival’s lawyer, and, more important, he didn’t want the man to catch wind of his new games manufacturer, Mankato Corporation, one of the few game makers based in the Minneapolis area. Rubin had warned him not to reveal the manufacturer’s name for fear that General Mills would pressure Mankato not to produce the game.
After a short break, Ralph nervously returned to his seat, unsure of what to do about his impending flight. He told Howes what he had thought of his threatening letter. It “reminded me of the demands of the rebellious students,” Ralph said, making a nod to the political turmoil on campuses like Berkeley and San Francisco State. He added, “now that I meet you, I don’t see how you could have written it, because, you know, you caused great anguish to my wife, for example, with that kind of a letter. That is a very, very threatening letter.”
On and on the dance went, into a third and a fourth hour. There was another recess, during which Ralph ran to his car to grab a copy of his earlier version of Anti-Monopoly: Bust-the-Trust that Parker Brothers lawyers wanted to see. Ralph then told the attorneys that he thought Monopoly was “a fine game, except its values are a little bit off.”
As the proceedings wore on, Ralph’s rollicking tone began to irritate the Parker Brothers lawyers.
“I have noticed,” Howes said as they were examining the Anti-Monopoly game board, “that you have smiled throughout this interrogation, which certainly isn’t burdensome, but I wondered why you remarked”—he pointed to one of the spaces on the board—“that this one was amusing. Was it because it refers to the ‘Tired of the Boardwalk Barons and Pudgy Felines of Pennsylvania Avenue’?”
; The words were written on the space.
“Yes,” Ralph said, chuckling. “I thought that was amusing.”
“What do you understand by ‘the Boardwalk barons’?”
“Boardwalk barons,” Ralph said, “I understand, are, you know, in monopolistic times people who—”
“And ‘Boardwalk’ is a term used in Monopoly,” Howes countered.
“Well, there’s some association there. I think of it as, you know, a monopolistic people who develop land monopolies and gouge the consumer.”
“What does the reference to ‘Pennsylvania Avenue’ conjure up in your mind?”
“Well, I thought of that for a while,” Ralph said, referring to his Anti-Monopoly board. “I think it’s rather witty. I think they are talking about the fat cats who apparently seem to have been involved or at least are alleged to have been involved with our leaders, fat cats rather than—”
Howes cut him off. “And the ‘Pennsylvania Avenue’ reference in connection with a board game to you means Washington, D.C. and does not mean the Monopoly game board?”
“No, no. Washington D.C., Pennsylvania Avenue,” Ralph said. “The White House.”
This exchange boosted Ralph’s confidence some, even as he was still trembling inside. He thought he was starting to get through to the Parker Brothers lawyers. But he didn’t forget what Rubin had told him—one slipup and the entire case could be thrown into disarray.
Hour five. Hour six. Rolling into hour seven. The departure time of Ralph’s potentially awkward flight with Richard Berman was inching closer and closer. But during a break, Ralph made a few phone calls and was able to reschedule his flight to one leaving later that evening. Shocked at his success, Ralph was glad that he had eaten his sandwich. Dinnertime had come and gone.
By the time the lawyers were finished, it was eight forty-five P.M.—the deposition had taken eight hours. Feeling exhausted but victorious after his first battle with Parker Brothers, Ralph headed to the airport and flew to Minnesota.
•
Sometime later, Ralph sat in his study, surrounded by documents and Anti-Monopoly boxes, unsure of where his case was going. Then his son Mark, always the avid reader, burst into the room.
“I found something!” he shouted excitedly.
In Mark’s small hands was a red book with drawings of a doll, a teddy bear, and a Monopoly board on its cover. The book was titled A Toy Is Born and had been written by Marvin Kaye. Published in 1973, it must have made its way into the Anspach house when Ralph was collecting research material on the toy and game industry.
“Dad!” Mark said, “Charles Darrow didn’t invent Monopoly. A woman did!”
Ralph sat up.
Mark handed the book to Ralph and pointed to a passage in the third chapter, “Over the Rainbow Without Passing Go.” It read: “The creation of Monopoly is generally attributed to Charles B. Darrow, but game historians point to the Landlord’s Game, patented in 1904 by Lizzie J. Magie and featuring purchasable properties, including utilities, a ‘public park’ corner corresponding to Monopoly’s ‘Free Parking,’ and a ‘Go to Jail’ space. Darrow evidently added several new elements to the pattern of the Magie game.”
From there, the book went on to tell the well-known story of Charles Darrow. There was no further mention of Lizzie Magie.
Ralph couldn’t believe it. Who was Lizzie J. Magie? And 1904? That wound the clock back much further than Darrow’s 1935 patent.
Then, Ralph’s phone rang with tragic news. His forty-three-year-old lawyer, Herb Rubin, had just died of a massive stroke.
•
Startled and saddened, Ralph again met with his lawyers at Warren, Rubin, Brucker & Chickering. John Droeger, the man who had been brought in to handle the antitrust portion of his case, would now be his lead litigator.
The two men clicked quickly, with Ralph appreciating Droeger’s proud history as a rogue. Before becoming a lawyer, Droeger had served in the U.S. Army in the mid-1940s and had been honorably discharged in 1946. But when the army drafted him to fight in the Korean War, he refused to go. While serving a year and a half in jail for draft evasion, he taught himself law. He had also taken a few law courses at the University of Utah and Stanford University, and after his release he passed the California bar exam. Moving to the Bay Area, he met his future wife, Joanna, and the two started the Brighton Express, a restaurant that became a hangout for the likes of Janis Joplin, Lenny Bruce, and Christopher Isherwood. Perhaps the most famous thing about the restaurant, however, was Joanna’s dessert creation: mud pie.
Droeger loved liberal causes and embraced Anti-Monopoly both as a game and as a legal mission. “I start out with the idea that everyone is bad,” he said, “and it’s just a matter of proving it.” He suggested that they pursue two main lines of attack. The first was the “dirty hands” argument—if he could prove that Parker Brothers had acquired its trademark in a fraudulent manner, then the mark would be considered no good. But that argument seemed like a long shot to both men, as it would be hard to prove in court.
Droeger’s second line of attack was more promising. People can’t trademark something that’s in the public domain, so if he and Ralph could prove that Monopoly had been widely played long before the 1935 patent date, they might have a case. Herb Rubin had begun researching the game’s origins prior to his untimely passing, but that work remained incomplete. Ralph and Droeger had no idea if it would be possible to track down the game’s history, especially since Charles Darrow was long dead, but they decided that they had to try.
As an economist, Ralph understood the mechanisms of the antitrust issues that his Anti-Monopoly game gave a nod to. But he wasn’t a lawyer, and he soon realized that if he was to keep pace with the Anti-Monopoly litigation, he would have to turn himself into a de facto paralegal. So, even while up against court deadlines, family pressures, work as a professor, and the labors involved with launching a fledgling business, Ralph gave himself a crash course in trademark law.
Trademark lawyers use the term “genericide” to refer to product names that become so successful that they lose their trademark and become generic words adopted into the common language. As Ralph learned, it’s an unintended and negative result of something becoming too popular. Words such as “aspirin” and “heroin” (once belonging to Bayer) and “escalator” (once belonging to Otis) are floated as cautionary tales among trademark lawyers of product names that became so widely used that they lost their trademark. Other examples include “kerosene,” “zipper,” “yo-yo,” and “thermos.”
On the opposite end of the spectrum from genericide is a brand that is distinctive, a product that could only be made by, and attributed to, one company. Courts rule where on the generic-distinctive spectrum products lie. Among distinctive trademarks, too, judges determine how strong or weak a mark is. Sometimes, if a judge looks at a trademark and feels that it’s weak, other brand names can closely resemble it and still not be ruled infringements.
When company executives see that their trademarks are endangered, they sometimes fight back. Band-Aid’s makers eventually added the word “brand” to their television slogan, so that it went, “I am stuck on Band-Aid brand, ‘cause Band-Aid’s stuck on me.” Similar efforts were made to protect Kleenex as a specific brand of tissues and Xerox as a unique way to make photocopies.
Research aside, Ralph continued to try to sell his Anti-Monopoly games. But between his role as a professor, his family obligations, and his frequent Anti-Monopoly-related trips—with their long flights, crummy hotel rooms, and unhealthy food—he was exhausted. Sales of his game had plunged since his fight with Parker Brothers had begun, a development that he blamed on the alleged Parker Brothers intimidation of potential game distributors and sellers. In just a few short months, Ralph had witnessed the explosive success of his game, threatening legal notices from General Mills, his attorney’s sudden death, a pile of legal bills, and a lawsuit that could prove to be unwinnable.
•
In the television station studio, sweat lining his brow, Ralph described how he and his family had come to create Anti-Monopoly. He spoke of the game as a commentary on the 1970s, an era filled with monopolists run amok in a world with what he thought were weak antitrust laws, the Sherman and Clayton Acts shadows of their original ambitions, the Federal Trade Commission stale.
Afterward, the television show host opened up the lines to phone calls from viewers. Dressed in his trademark rumpled suit, Ralph was perspiring even more than usual under the hot studio lights.
An elderly woman came on the line, identifying herself as Mrs. Stevenson. She told listeners that she didn’t understand why Parker Brothers was harassing Ralph about Anti-Monopoly. A friend of hers had played the monopoly game with her friends and family long before the Great Depression hit. Whenever Charles Darrow’s name had come up in conversation, her friend Joanna had thrown a fit, Mrs. Stevenson said.
Ralph listened carefully to the caller. But as she spoke, the TV show host passed him notes written in big, bold letters warning him not to respond on air to potentially libelous conspiracy theories.
Darrow hadn’t invented the game, Mrs. Stevenson continued. He had stolen it. Her friend Joanna, who had grown up in Quaker circles, knew more.
Ralph felt a mix of confusion, shock, and hope. The Quakers had played a role in helping him and his immigrant family adjust when they had first come to New York City, as they had helped many others at the time, but what did they have to do with Monopoly?