While I was in London Drugs looking for a study snack, I came across these couple of boardgames, “Canada-opoly” and “British Columbia-opoly”… does anyone know the story behind them?! They’re made by a company called “Offset Media” based in Victoria, BC. Offset Media sell other kinds of “opolies” including Bible-opoly, Fort Mcmurray-opoly, and Santa-opoly. They make no mention of “Monopoly” on the website although on their Amazon.ca listing they say its “similar to the classic Monopoly board game” but “with a twist”.
According to the Canadian Trademark Database, the Monopoly Trademark is live and active and visually, it doesn’t look like any of the assets are from the classic Monopoly games so I’m assuming there’s no copyright/trademark licensing. I would say there’s some brand confusion (and arguably some brand dilution) going on. I’d love to know what’s going on with these games. It also looks like Hasbro lost its Monopoly trademark in the EU?! I might just return back to this Monopoly rabbit hole later.
I guess it might be the case that Monopoly may not have a monopoly on “opoly”?
Communications Law
In the US, Monopoly went through a fairly long legal battle. In Anti-Monopoly, Inc. v. General Mills Fun Group, Inc., Monopoly claimed trademark infraction against the game Anti-Monopoly. The Ninth Circuit (it’s always the Ninth Circuit, ha), made the following findings:
“When members of the consuming public use a game name to denote the game itself, and not its producer, the trademark is generic and, therefore, invalid.”
…
“To us, the evidence overwhelmingly shows that they very successfully promoted the game of Monopoly, but that in doing it they so successfully promoted “Monopoly” as “the name of the game,” that it became generic in the sense in which we use that term in trademark law.” [1]
In short, they found that people don’t associate Monopoly with the owner the trademark. Nobody thinks Parker Brothers or General Mills when they think Monopoly. As a result, the name became generic. Also, this case prompted Congress to change trademark laws in order to help prevent a similar collapse of trademark.
“Directly as a result of this case, Congress amended § 14(c) of the Lanham Act, which addresses cancellation of a registered mark, later that year. Congress added language clarifying that a mark becomes generic only if its “primary significance . . . to the relevant public” is as the generic description of the particular goods or services, and that purchaser motivation is not used as the test.” [2]
As for the copyright issue, the link below to the ABA article explains that as well. In general, you cannot copyright a game because a game is an idea. You can copyright the exact expression of that idea, so you couldn’t for example use the same Monopoly tokens, have spots called Illinois Avenue or Boardwalk, etc. However, the idea of accumulating property and charging rent to other is beyond copyright. Delrina Corp v. Triolet Systems Inc. covers this. There, the ONCA quotes from Moreau v. St. Vincent:
“It is . . . an elementary principle of copyright law that an author has no copyright in ideas but only in his expression of them. The law of copyright does not give him any MONOPOLY [convenient wording, ha!] in the use of the ideas with which he deals or any property in them, even if they are original. His copyright is confined to the literary work in which he expressed them. The ideas are public property, the literary work is his own. Everyone may freely adopt and use the ideas but no one may copy his literary work without his consent. [3]
However, the ONCA also said that the application of this principle in the USA is a bit more strict than in Canada and the UK. “In choosing to protect skill and labour, British and Canadian courts have accorded a certain degree of protection to ideas.” [4] I don’t know if the Canadian method would afford the idea of Monopoly some protection, but there is a better chance of that happening in Canada than the US.
So yeah, the IP issues Monopoly seem really complicated.
[1] https://casetext.com/case/anti-monopoly-inc-v-general-mills-fun-group
[2] https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2014-15/march-april/not-playing-around-board-games-intellectual-property-law/#8
[3] https://www.canlii.org/en/on/onca/doc/2002/2002canlii11389/2002canlii11389.html?autocompleteStr=delrina&autocompletePos=2
[4] Ibid.