Bob Ambrogi reports on some cease-and-desist follies involving GET OUT OF JAIL FREE and Mr. Monopoly, which of course are the intellectual property of the Monopoly people over at Hasbro. As could be expected with a friend’s blog, I put in my two cents in his comments; here I flesh ’em out for a penny or two more.
I’m not so interested in the cute part of the story about how the original cease and desist letter got returned to Patterson Belknap postage due, which, as far as it goes, is a nice hook. Always good to make the C&D sender look silly. The interesting legal question to me, however, is this, as quoted by Bob from the recipient Randy Cassingham’s blog:
We recently became aware that you are offering for sale “Last Chance – Get Out of Hell Free” cards and stickers on your website at www.goofh.com that depict the famous MR. MONOPOLY® character and are obviously derived from the MONOPOLY® “Chance” card. …
We therefore demand that you immediately cease and desist from any further use of the MR. MONOPOLY® character, remove the cards and stickers from your website, and provide us with a written assurance that in the future you will refrain from any further unauthorized use of the elements and characters of the MONOPOLY® property trading game.
“His lawyer responded to Hasbro’s lawyers, contending that his cards were parody and that he was within his rights to publish them,” says Bob, adding that they later stuck a disclaimer on the card (not usually too helpful).
So, is this really trademark use at all, or is Mr. Monopoly really a trademark? It’s true that everyone associates this phrase with Monopoly, but not every cultural reference is, really, a trademark infringement, is it? Well, of course I don’t think so, but don’t ask a judge these days.
Of course if my view of on this point were adopted, the argument would work even better for once-removed parody defenses such as the one suggested here. Using someone else’s work to poke fun at a third person is not a parody of the original work, just a utilization ofthe recognized cultural cue to move the point along. Under current law, for better or worse that does not appear to qualify as parody.
Someone say “monopoly”? (Hat tip to Andie Schwartz.)