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Sweetpea Entertainment files for partial dismissal of D&D movie case

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Sweetpea Entertainment has asked for a partial summary judgment against Hasbro and Wizards of the Coast over the pending Dungeons & Dragons movie. As reported by Deadline on December 16, Sweetpea's arguments for the judgment are:

  • Plaintiffs cannot prove their First Cause of Action for Copyright Infringement.
  • Plaintiffs cannot establish that Sweetpea created any work that allegedly infringes the copyrights at issue.
  • Plaintiffs cannot prove their Second Cause of Action for Trademark Infringement and Third Cause of Action for False Designation of Origin.
  • Plaintiffs cannot establish that Sweetpea used the trademarks at issue in interstate commerce.
  • Plaintiffs cannot prove their Fourth Cause of Action for Trademark Dilution.
  • Plaintiffs cannot prove that Sweetpea is currently “making commercial use of the mark in commerce,” or that the alleged “use” would present a “likelihood of dilution of the distinctive value of the mark.”

The motion indicates that Sweetpea and WOTC's counsel have conferred by telephone and in-person on numerous occasions, including November 22, 2013 and December 10, 2013, and are still unable to resolve their differences.

At issue is a script modeled after Chainmail, which as Dungeons & Dragons historians know was the predecessor of Dungeons & Dragons. Sweetpea Entertainment argues that Chainmail has nothing to do with the D&D brand, which brings up the question of whether or not Chainmail is distinctly not D&D, and if a movie could be suitably different such that it wouldn't have themes that would be recognizable as part of D&D.

This is not the first request for a summary judgment -- Sweetpea's earlier request was denied so that WOTC could conduct a discovery:

In the months following the Court’s order, Plaintiffs received documents from Sweetpea, thousands of pages of documents from third parties, and took the depositions, among others, of Courtney Solomon, Sweetpea, and the third- party studio that sent Solomon a copy of Chainmail. Having had ample opportunity to discover evidence that might allow them to make a case of copyright or trademark infringement, Plaintiffs have nothing, and will not be able to point to any evidence that Sweetpea created an allegedly infringing work or used the Dungeons & Dragons trademark in commerce.

Of course, despite the claim that this isn't about D&D, TSR (and therefore WOTC) also owns the rights to the Chainmail brand:

In 1975, TSR, Inc. acquired the rights to several Guidon Games titles including Chainmail; TSR published the 3rd edition of the game, which remained in print as late as 1979. The third edition of Chainmail doubled the list of Wizard spells and added an explicit "spell complexity" factor to the game. Following intellectual property complaints about the use of Tolkien's concepts in TSR games, Chainmail swapped out "hobbits" for "halflings" and removed the balrog from the game. A game based on the d20 System was available under the Chainmail name in 2002.

Sweetpea's current argument seems to be that if anything, the lawsuit by WOTC is premature: a third party wrote the script and they have not licensed anything to Warner Bros to proceed with Chainmail. It remains to be seen who will blink first.

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