1993 WL 79272 (N.D.Ill.))
TSR, INC., Plaintiff,
v.
MAYFAIR GAMES, INC., a corporation and Darwin P. Bromley, individually and as President of Mayfair Games, Inc., Defendants.
No. 91 C 0417.
March 17, 1993.
MEMORANDUM OPINION AND ORDER
SHADUR
	*1 TSR, Inc. ("TSR") has sued Mayfair Games, Inc. 
("Mayfair") and its President Darwin Bromley ("Bromley"), seeking 
injunctive relief, damages and contract rescission on the basis 
of several claims:  (1) copyright infringement, (2) trademark 
infringement, false designation and misappropriation, (3) unfair 
competition and (4) breach of contract, all arising from 
Mayfair's use on its products of TSR's "Advanced Dungeons and 
Dragons" trademark.  TSR currently moves for summary judgment on 
the Fourth Count of its Amended Complaint, which asserts that 
Mayfair breached a 1984 Settlement Agreement (the "Agreement") 
between the parties. [FN1]  Mayfair responds by asking for 
summary dismissal of that breach of contract claim.  For the 
reasons stated in this memorandum opinion and order, each motion 
is granted in part and denied in part. 
Fed.R.Civ.P. ("Rule") 56 Standards
	Rule 56 principles impose on the movant the burden of 
establishing the lack of a genuine issue of material fact 
(Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).  For 
that purpose this Court is "not required to draw every 
conceivable inference from the record--only those inferences that 
are reasonable"--in the light most favorable to the nonmovant 
(Bank Leumi Le- Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th 
Cir.1991)).  Where as here cross- motions are involved, that 
principle thus demands a dual perspective--one that this Court 
has described as Janus-like--that sometimes calls for the denial 
of both motions.
	This District Court's General Rule ("GR") 12(m) and 12(n) 
require factual statements in support of and in opposition to 
Rule 56 motions, and both sides have tendered such statements.  
TSR's statement in support of its motion is cited "P. 12(m)," 
while Mayfair's responsive statement is cited "D. 12(n)." 
Mayfair's statement of additional facts in support of its cross-
motion is cited "D. 12(m)," and TSR's responsive statement is 
cited "P. 12(n)." [FN2] Where one party's assertion within its GR 
12(m) statement is admitted by the other party, that will be 
indicated here by omitting "12(m)" and "12(n)," so that the 
citation will simply read "P-D P --" or "D-P P --" (the first-
listed party being the one whose Rule 12(m) statement has been 
admitted).
Facts
	TSR owns trademarks for the "Advanced Dungeons and Dragons" 
("AD & D") [FN3] and "Dungeons and Dragons" ("D & D") role-
playing game systems, [FN4] which were created by TSR co-founder 
E. Gary Gygax ("Gygax") (P. 12(m) P 8). [FN5] Such a role-playing 
game is a system of interactive story telling using maps, dice 
and an extensive set of rules (P-D P 7).  "One participant acts 
as a referee narrating the adventure, describing problems and 
controlling the actions of supporting characters and events.  The 
remaining players play out their roles in accordance with the 
rules."  (P-D P 10).  TSR places the AD & D trademarks on rules 
and accessories, as well as on adventure modules and supplements 
(P-D P 21).
	*2 In 1982 Mayfair began to produce and market adventure and 
reference books under the trademark "Role Aids" for use in 
playing AD & D (D. Mem. 10, P- D P 22).  TSR complained to 
Mayfair that Mayfair was making improper and infringing use of 
the AD & D trademark, and the parties signed the Agreement on 
September 28, 1984 to govern Mayfair's future use of TSR's 
trademarks (P-D P 28).
	Under the Agreement Mayfair acknowledged TSR's ownership of 
the D & D and AD & D trademarks and agreed not to contest their 
validity (P. Ex. 1 s III, P-D P 29).  Mayfair also agreed to use 
the AD & D trademarks solely in connection with Role Aids 
modules, advertising and promotional materials.  TSR's trademark 
was to appear once on an advertisement, catalog, flyer or press 
release, and only within a specific emblem form [FN6] in which 
Mayfair would state that the Role Aids product involved is for 
use with the AD & D role-playing game and that AD & D is a 
registered trademark of TSR, and would disclaim TSR's approval of 
that specific use of TSR's trademark by Mayfair (P. Ex. 1 s I and 
Ex. B, P- D PP 30-32).  Mayfair's own symbol was required to 
appear on the same page. Mayfair also agreed (2) to phase out all 
noncomplying packaging, (2) not to use TSR's trademark in any 
other manner and (3) not to include statements on Role Aids 
modules carrying the AD & D trademark that such modules were 
suitable for use with other role-playing games (P. Ex. I ss IV-V 
and Ex. B, P-D 136).  If materials violating the Agreement were 
distributed, Mayfair was required to make good faith efforts to 
recover such materials and to withdraw and withhold offending 
materials from distribution (P. Ex. 1 s VI, P-D 12(n) P 38).  
Despite the foregoing prohibitions, Mayfair was not prohibited 
from acquiring from the creators of Dungeons and Dragons, Arneson 
and Gygax, any of their rights to use the D & D trademark (P. Ex. 
1 s V, D-P P 121).
	Unsatisfied with Mayfair's performance, on January 22, 1991 
TSR filed its initial Complaint against Mayfair advancing the 
four claims described at the outset of this opinion.  After 
discovery TSR filed an Amended Complaint on December 19, 1991.  
Only the Fourth Count is at issue on the current cross- motions, 
which dispute whether various Mayfair products violate the terms 
of the Agreement (P. 12(m) PP 40-106).
Breach of the Agreement
	TSR's allegations of breach of the Agreement by various 
Mayfair products fall into three categories:  (1) packaging and 
promotional materials for the "City State of the Invincible 
overlord" product, (2) "Role Aids" promotional materials and (3) 
advertising materials for the "Freedom of Choice" campaign. This 
opinion addresses each in.turn.
	City State of the Invincible overlord
	In July 1987 Mayfair acquired the rights in, and began to 
produce and market, a new role-playing game called "City-State of 
the Invincible overlord" (the "Invincible Overlord" game)(P-D P 
41).  On July 9 Mayfair and Gygax entered into a written 
agreement under which the Invincible Overlord box cover would 
state that it came "With an introduction by E. Gary Gygax, 
creator of Advanced Dungeons & Dragons" ("Gygax statement")(D-P P 
122).  TSR's trademark was not placed within the cartouche as 
specified in the Agreement, and no disclaimer of TSR's approval 
of the use of the AD & D trademark was visible (P-D P 44). 
Mayfair used the Gygax statement in the text of a flyer promoting 
Invincible overlord, and it used the AD & D trademark again at 
the bottom of the flyer to identify AD & D as a registered 
trademark of TSR (P-D P 47).  Mayfair also used the AD & D 
trademark in various promotional materials that depicted the 
Invincible Overlord box cover or described Invincible Overlord as 
compatible with AD & D, without an accompanying disclaimer of 
TSR's approval of the use of its trademark (P-D PP 50, 52, 54, 
56). [FN7]
	*3 TSR asserts that all uses of the AD & D trademark in 
connection with the Invincible overlord game violate the 
Agreement.  Mayfair admits that the use of the AD & D trademark 
in the 1990 Mayfair Trade Catalog violated the Agreement (D. 
12(n) P 51), but it denies that the other uses violate the 
Agreement (D. 12(n) PP 46, 48, 53, 55).
	A. Gygax Statement
	Mayfair's use of the AD & D trademark within the Gygax 
statement in conjunction with Invincible Overlord and related 
advertisements contravenes the plain language of the Agreement, 
which states in part (P. Ex. 1 P I): Mayfair agrees that except 
as otherwise provided herein, any use of TSR's Advanced Dungeons 
& Dragons trademark shall be limited to use within a specified 
Trademark Statement, solely in connection with "Role Aids" 
modules, and advertising and promotional materials therefor, and 
strictly in compliance with the Trademark Use Requirements as set 
forth in Exhibit B attached hereto and incorporated herein by 
reference. Invincible Overlord is not of course a Role Aids 
product.  Even though the Agreement later went on (P. Ex. 1 P V) 
to carve out a total exception for rights acquired from Gygax, 
that exception was limited to rights in the D & D trademark, and 
the AD & D trademark did not appear in the oval emblem form. 
Mayfair's Mem. 5 argues that it used the Gygax statement based on 
his representation that under his confidential termination of 
employment agreement with TSR he had the right to allow Mayfair 
to use the statement.  However, Mayfair's belief in that respect 
could not of course justify a patent breach of the Agreement's 
limitations. [FN8]
	But Mayfair also contends that TSR's acceptance of several 
ads for Invincible Overlord that showed the Gygax statement 
operate as a waiver of TSR's claim of a material breach (D. Mem. 
10).  TSR's own Dragon Magazine published three Mayfair ads for 
Invincible overlord in March 1988, April 1989 and February 1990 
(D-P P 124).  TSR claims that portions of the ads with the Gygax 
statement were not visible in the ads (P. 12(n) P 124).  While 
TSR admits that a lawyer reviews "certain advertisements" for 
possible misuse of trademarks, TSR's attorney was employed only 
for "some portions of the pertinent time period" (P. 12(n) P 
123).
	Under Wisconsin law waiver requires proof of (1) a right 
possessed by the waiving party, (2) knowledge of the right by the 
waiving party and (3) an intentional and voluntary waiver 
(Shannon v. Shannon, 429 N.W.2d 525, 530 (Wis.App.1988)).  Intent 
to waive a known right may be inferred from the conduct of the 
parties (Christensen v. Equity Coop. Livestock Sale Ass'n, 396 
N.W.2d 762, 763 (Wis.1986)).
	Under a view of the facts in the light most favorable to 
Mayfair, TSR's knowing acceptance of the Invincible Overlord 
advertisements, which displayed a picture of the Invincible 
Overlord box cover with the Gygax statement, could be construed 
as a waiver of the materiality of any breach by Mayfair's 
packaging and advertising.  Mayfair used the Gygax statement on 
the Invincible Overlord box cover (P. Ex. 12) and in the 
Invincible Overlord flyer (P. Ex. 13), the Invincible Overlord 
product description sheet (P. Ex. 14), the Mayfair reply card (P. 
Ex. 16) and the 1990 Mayfair trade catalog (P. Ex. 17).  To the 
extent that TSR's motion for summary judgment charges Mayfair 
with breach of the Agreement by its use of the Gygax statement in 
Invincible Overlord advertising and packaging, the motion is 
therefore denied.
	*4 On the other side of the coin, Mayfair's motion for 
summary dismissal of that same charge on grounds of waiver by 
acceptance must be denied as well.  By definition TSR could not 
waive any objection to use of the Gygax statement if it did not 
know or should not have known of that use (Shannon, 429 N.W.2d at 
530).  Although the visibility of the Gygax statement varies 
within the ads, in all three of the ads the box cover print is 
greatly reduced, so that the statement is not as readily noticed 
as it would be on the full-sized box cover.  TSR also asserts 
that "the legal department at TSR had an attorney employee for 
only some portions of the pertinent time period" (P. 12(n) P 
123).  But the statement that TSR cites for that statement (Moore 
Dep. 18-20) does not really support its proposition. [FN9]  
Nevertheless it remains possible that the.TSR attorney reviewers, 
if any, may not have noticed the Gygax statement in the 
Invincible Overlord ads. [FN10]
	Mayfair's Mem. 10 also contends that TSR's failure to object 
to the use of the AD & D trademark before filing the motion for 
summary judgment operates as a waiver on delay grounds.  Although 
Mayfair has not labeled (nor argued) the contention in this 
fashion, this Court views the argument--waiver due to the passage 
of time--as one for the application of laches.  Wisconsin law 
requires four elements for laches to apply:  (1) unreasonable 
delay, (2) knowledge of the basis of the claim and failure to act 
on the part of the plaintiff, (3) lack of knowledge on the part 
of the party asserting the defense that the other party would 
assert the right on which he bases his suit and (4) prejudice to 
the party asserting the defense in the event the action is 
maintained (Jensen v. Janesville Sand & Gravel Co., 415 N.W.2d 
559, 562 (Wis.App.1987)).
	Again on a pro-Mayfair look at the facts, TSR knew of the 
Invincible Overlord ad by March 1988 but did not raise any 
objection until it filed its summary judgment motion on June 17, 
1992. [FN11]  That four-year lapse before objection may well be 
unreasonable (see Money Store v. Harriscorp Finance, Inc., 689 
F.2d 666, 674 (7th Cir.1982), upholding the district court's 
determination that a 22-month delay was unreasonable). [FN12]  
Such an unreasonable delay in trademark actions precludes 
recovery of damages or wrongfully derived profits during the 
period before suit was filed (James Burrough Ltd. v. Sign of the 
Beefeater, Inc, 572 F.2d 574, 578 (7th Cir.1978)).  Although 
injunctive relief and damages and profits for the period after 
the filing of suit may not be precluded (id., citing McLean v. 
Fleming, 96 U.S. 245 (1877)), Mayfair has said it ceased 
distribution of Invincible Overlord in June 1992 (Bromley Aff. P 
12).  If so, and if Mayfair can make the appropriate showing of 
prejudice due to TSR's delay, the laches defense would in effect 
be a complete bar to relief on the issue of breach by the 
Invincible Overlord product.
	To take the opposite view as was done with Mayfair's 
estoppel defense, the defense of laches requires knowledge (or at 
least constructive knowledge) on TSR's part.  Because this 
opinion must assume lack of knowledge by TSR in considering 
Mayfair's motion to dismiss, [FN13] laches cannot now provide 
grounds to grant Mayfair's motion.
	B. Compatibility with AD & D
	*5 TSR also alleges breach of the Agreement by two 
Invincible Overlord materials that state that the series is 
compatible with AD & D. Mayfair has admitted that the Mayfair 
1990 trade catalog, which stated that "The Invincible overlord 
series is compatible with the Advanced Dungeons & Dragons role-
playing game" (with the only disclaimer statement being placed in 
a footnote ten pages later) violated the Agreement.  Because 
Mayfair has also made no defense of waiver as to that catalog 
(see D. Mem. 10), TSR's motion for summary judgment is granted to 
the extent that it is based on breach of the Agreement by the 
1990 Mayfair trade catalog.
	TSR has also alleged violation by writers' guidelines that 
Mayfair distributed to authors and potential authors of its 
publications.  Those guidelines stated that "The Overlord and 
Role Aids product lines are designed for use with TSR's Advanced 
Dungeons & Dragons TM system" (P. 12(m) P 53, P. Ex. 11)).  
Mayfair denies violation, but without any attempt at providing an 
explanation or evidence (D. 12(n) P 53).  Accordingly breach of 
the Agreement by the writers' guidelines is deemed admitted, and 
summary judgment is granted to that extent as well.
	Role Aids Promotional Materials
	In 1988 or 1989 Mayfair began a marketing drive for the Role 
Aids product line, and in 1990 it introduced the new Role Aids 
modules "Witches," "Psionics" and "Lizardmen" (P-D P 57).  TSR 
claims that the advertising materials for the Role Aids products 
(reply cards, trade and consumer catalogs, posters, flyers, slick 
sheets, press releases, product description sheets and Mayfair 
Games News letters) violated the terms of the Agreement (P. 12(m) 
PP 57-93).
	A. Violations Admitted by Mayfair
	Mayfair acknowledges many of TSR/s assertions.  It admits 
that its reply card (P. Ex. 16, D. 12(n) P 59), its 1990 summer 
catalog (P. Ex. 18, D. 12(n) P 63), a flyer for the "Witches" 
module (P. Ex. 21, D. 12(n) P 65), the Role Aids Slick sheets (P. 
Ex. 22, D. 12(n) P 68), an advertisement for "Psionics" (P. Ex. 
20, D. 12(n) P 70), its 1990 and 1991 trade catalogs (P. Exs. 17, 
19, D. 12(n) PP 72, 74), the July 1990 and June 1992 Mayfair 
Games News letters (P. Exs. 25, 27, D. 12(n) PP 79, 81) and 
several Role Aids product description sheets (P. Ex. 28-1 to -4, 
and -6 to -15, D. 12(n) PP 84, 86, 88) all violated the 
Agreement.  Mayfair also admits that the "People, Places & 
Things" sourcebook and "Demons" module product description sheets 
violate the Agreement (P. Exs. 29-1 and -2, D. 12(n) PP 99, 100).
	Mayfair makes three arguments as to those admitted 
violations by the Role Aids promotional materials:  (1) TSR has 
waived its right to object because Mayfair gave TSR copies of the 
Role Aids promotional materials violating the Agreement at game 
conventions between 1988 and 1991, but TSR did not alert Mayfair 
to the violations until the Amended Complaint was filed in 
December 1991, (2) the breaches were not material and (3) the 
violations caused no injury to TSR. Those arguments are addressed 
in turn.
	1. Waiver As already indicated, Mayfair says that it 
provided TSR representatives with copies of the Role Aids 
promotional materials from 1988 to 1991 (D. Mem. 11;  Bromley 
Aff. P 19).  Because TSR assertedly did not notify Mayfair of the 
violations until the December 1991 filing of the Amended 
Complaint, Mayfair urges that TSR has waived its right to object 
to the violations (D. Mem. 11).  Again this will be treated as an 
argument for the application of laches.
	*6 TSR admits that "Darwin Bromley and perhaps other 
representatives of Mayfair have passed out some catalogs and 
promotional materials to some representatives of TSR for general 
promotional purposes" (P. 12(n) P 135). However, TSR Mem. 6 
argues that it did not knowingly relinquish its right to object 
to the Role Aids promotional materials.  TSR asserts that the 
promotional materials were distributed primarily during 1990 
through 1992, that TSR filed its initial Complaint here on 
January 22, 1991 and that many Mayfair documents were not 
produced until Bromley's deposition was taken on October 1 and 2, 
1991, after which TSR filed its Amended Complaint expanding the 
Fourth Count on December 16, 1991 (P. R. Mem. 5, Bromley Dep. 
81).
	Only one of the materials that Mayfair acknowledges as 
violations is dated in 1988, with the rest dated in 1990, 1991 or 
1992. [FN14] measured back from the filing of the Amended 
Complaint, the earliest of the undated 1990 materials could not 
have been as much as 24 months old before TSR lodged its 
objections. Case law in this circuit has noted "that two years 
has rarely, if ever, been held to be a delay of sufficient length 
to establish laches" (Piper Aircraft Corp. v. Wag-Aero, Inc., 741 
F.2d 925, 933 (7th Cir.1984)).  Even if TSR knew of each 
offending Mayfair item at the time of issue (an unlikely 
situation, and certainly not established on the current record), 
Mayfair would have a potential laches defense only as to a single 
product description sheet dated in 1988.  And TSR's failure to 
object to a single isolated item cannot form the basis for a 
laches defense.
	Thus Mayfair's motion to dismiss the breach of contract 
claim on the basis of laches must be denied.  TSR's statement 
that it had only limited knowledge of the offending materials 
before filing its December 1991 Amended Complaint is enough to 
negate the required element of knowledge of facts sufficient to 
raise a claim for breach.  In fact, Mayfair may have contributed 
to TSR's delay by its own delays in responding to discovery 
requests.
	2. Lack of Materiality
	Mayfair Mem. 11 advances a lack of materiality defense in 
one nonstop sentence: [T]he promotional materials showed that 
they were from Mayfair and the Role Aids modules themselves, 
without exception, contained the Trademark Statement in strict 
compliance with the Settlement Agreement on their front covers so 
as to put the consumer clearly on notice as to the disclaimer 
sentences which, in fact, have little impact on the consumer and 
are not even read by the typical consumer who, in making a 
purchase decision, does not care which particular company 
produced the role-playing product. That argument might have had 
force in the absence of the Agreement--but once the parties had 
entered into the Agreement, such a contention comes too late.
	Agreement Ex. B P 5 requires, not only as to the Role Aids 
modules but also as to all promotional materials except for sales 
training literature, correspondence and press releases, that 
Mayfair use the AD & D trademark only in the form of the 
cartouche with the disclaimer statement.  In the Agreement itself 
Mayfair "acknowledge[d] that its failure to remedy [a] violation 
in accordance with the foregoing may result in immediate and 
irreparable damage to TSR" (P. Ex. 1 P VI).  Mayfair has admitted 
that it has disseminated materials using the AD & D trademark 
outside of the cartouche form and without the disclaimer 
statement, but also says that it has not attempted to recover the 
violating Role Aids advertising and marketing materials.
	*7 In short, this branch of Mayfair's argument would 
effectively render the Agreement a nullity by making a violation 
of its key terms nonactionable.  That contention too is rejected.
	3. Lack of Injury
	Mayfair finally contends that even if it violated the 
Agreement, its actions caused no injury to TSR. Walgreen Co. v. 
Sara Creek Property Co., 775 F.Supp. 1192, 1195 (E.D. Wis.1991) 
teaches that Wisconsin follows universal doctrine in that 
respect: Under Wisconsin law, a plaintiff claiming breach of 
contract has the burden of proving by a preponderance of the 
evidence that ... the defendant's breach is material and results 
or will result in injury.
	Mayfair says that its use of TSR's trademarks caused no 
customer confusion. To that end it presents the deposition of 
Stephen Winter, AD & D product group leader and game editor at 
TSR, in which he testified that he was aware of no customer 
confusion of Mayfair for TSR products since the Agreement (Winter 
Dep. 43) and that consumers do not refer to "Advanced Dungeons 
and Dragons" as a generic designation for role-playing game 
systems (id. at 37-38). [FN15] Moreover, Mayfair Mem. 12-13 
states, the Trademark Statement was an the cover of every Role 
Aids module, the Role Aids logo was more prominent on the front 
cover than the AD & D logo and every Role Aids module and piece 
of promotional material indicated that it came from Mayfair.  On 
the other hand, TSR says that confusion is "inevitable," and it 
represents (though not in evidentiary form) that retailers in 
London had "intermix[ed]" TSR and Mayfair products (P. R. Mem. 9 
& n. 3).
	For aught that appears, this may indeed be a case of minimal 
damage to TSR. So far as the ultimate consumer is concerned, 
Mayfair's compliance with the Agreement on all Role Aids modules 
negates any potential damage--for having bargained for the 
precise form of disclaimer that it wanted, TSR will not be heard 
to say that it has been hurt when that disclaimer has been 
adhered to. As for the sales market in which TSR and Mayfair 
compete, whether wholesalers or retailers, there has been no 
showing of lost sales or damage to the value of TSR's trademarks 
because of Mayfair's violations of the Agreement in promotional 
materials.  That subject remains for future determination. [FN16] 
And as stated later, the record here does not support TSR's claim 
for rescission of the Agreement.
	Accordingly the appropriate action at this point is simply 
to declare the existence of the breaches that have been admitted 
by Mayfair.  To that extent TSR is entitled to a judgment as a 
matter of law, with the decision as to the extent of any damages 
remedy to await further proceedings.
	B. Violations Denied by Mayfair
	1. Demons
	TSR contends and Mayfair denies that the cover of its new 
"Demons" module violates the Agreement (P-D P 108). [FN17]  
According to TSR, Mayfair has failed to comply with the 
contractual requirement that the Mayfair trademark be visually 
more prominent than the AD & D trademark--a requirement 
buttressed by express standards.  TSR's Supp. Mem. 2 argues that 
in violation of those standards the Role Aids logo is "almost 
invisible" in the upper corner of Demons, in gold lettering on a 
red background.  Mayfair admits that "[t]he degree of contrast of 
the Role Aids logo on Mayfair's Demons product cover ... is 
substantially less than it was on the final proof submitted by 
the printer and approved by Mayfair" (Bromley Aff. P 37).  Even 
so, Mayfair urges that the Role Aids logo is nonetheless visible, 
that the second page of Demons makes clear that it is a Mayfair 
product and that "future production runs of Demons will have the 
Role Aids logo in white on a red background" (D. 12(m) P 149, 
Bromley Aff. P 37, D. Ex. 7).
	*8 There is no ambiguity in the Agreement, which requires 
that "the ROLE AIDS trademark [be] on a color background with no 
less contrast than the contrast of the ADVANCED DUNGEONS & 
DRAGONS trademark to its background" (P. Ex. 1 P I and Ex. B P 
1).  Although the Role Aids logo was not visible at all in the 
photocopy of the Demons cover originally submitted to this Court, 
it is certainly legible on the Demons module itself.  But the 
Role Aids logo is a dull gold printed on a red background, while 
the AD & D logo is in white on a red background.  Mayfair's 
printer woes and future intentions notwithstanding, the cover of 
the present Demons module clearly does not comply with the terms 
of the Agreement.  It too constitutes a contractual breach.
	2. Quote from Dragon Magazine Review
	TSR also asserts that Mayfair's 1990 and 1991 trade catalogs 
and the Undead product description sheet (P. Ex. 17 at 25, P. Ex. 
19 at 11, P. Ex. 28-5) violate the Agreement by using this quote 
from a review of Undead in Dragon Magazine (P-D P 75): This is a 
quality AD & D game campaign supplement.  The setting is 
imaginative and fantastic;  the dead guys are grim and menacing;  
there are plenty of neat new magic and monsters. [FN18] Mayfair 
denies that its use of the AD & D trademark in the context of 
quoting from Dragon Magazine amounts to a violation of the 
Agreement (D. 12(n) P 76).
	Agreement P V provides in part: Except for use of TSR's 
Advanced Dungeons & Dragons trademark in accordance with this 
Agreement, Mayfair hereby agrees to cease and desist throughout 
the world from use of TSR's Advanced Dungeons & Dragons trademark 
or any mark confusingly similar thereto, in connection with any 
products or advertising or any other materials. If the quoted 
review had originated with Mayfair, there could be no disputing 
that it violated that restriction.  Mayfair would have it that 
the answer should be different because the reviewer and not 
Mayfair made the decision to describe Undead as an "AD & D game 
campaign supplement" (D. 12(n) P 76, Bromley Aff. P 36).  But no 
use by others of the AD & D trademark in connection with Role 
Aids products can clear the way for Mayfair to do the same.  
After all, Mayfair has curtailed its own use of the AD & D 
trademark in the Agreement.  It may not avoid those restrictions 
by copying the usage of someone who was not so inhibited, the 
Dragon Magazine reviewer.
	Once again Mayfair points out that TSR did not complain to 
Mayfair until it filed the present motion.  Mayfair had included 
the Dragon Magazine quote in its 1990 and 1991 catalogs, several 
years after issuing the product description sheet on October 20, 
1986.  Though Mayfair has not contended that it supplied TSR with 
a copy of that earlier document, it says that it gave TSR copies 
of the Mayfair Games catalog at trade conventions (D 12(m) P 35).  
But as already stated, even if TSR became aware of the violation 
in the 1990 catalog, [FN19] its failure to object before it filed 
the Amended Complaint in December 1991 is not so unreasonable as 
to bar its current claim. [FN20]
	3. "Suitable for Use with Any Fantasy Campaign"
	*9 According to TSR, the To Hell & Back Again product 
description sheet (P. Ex. 29-3) also violates the Agreement 
because it 'says that the product "has numerous locations that 
can be worked into any fantasy campaign" (P. 12(m) P 100).  
Mayfair disputes that, because the relevant provision of the 
Agreement prevents Mayfair only from describing Role Aids as 
"suitable for other role- playing games" (P. Ex. 1 P I and Ex. B 
P 6).  For that purpose "role-playing game" is defined as (id.): 
a structured form of social entertainment comprising a quantified 
interactive story telling game that allows the participants, 
within their imagination, and subject to the limitations of the 
game's rules, to adventure forward, attempting to satisfy their 
personal ambitions or fantasies through the use of the 
characteristics, perceptions and abilities of an imaginery [sic] 
character or person.
	Mayfair Mem. 6-7 urges a difference between a role-playing 
game and a fantasy campaign (D. 12(n) P 101, Bromley Aff. P 18, 
Winter Dep. 82, Santana Aff. P 4).  According to Mayfair Mem. 6, 
"there are multiple fantasy campaigns in Advanced Dungeons and 
Dragons."  Winter Dep. 82 describes a fantasy campaign as "the 
series of adventures that's being conducted by a particular game 
referee or with a particular group of players with a rotating 
referee's position."
	Although TSR seeks to deny Mayfair's assertion that the use 
of the term "fantasy campaign" does not violate the Agreement (P. 
12(m) P 130), it does admit that "[a] fantasy campaign is 
different from a fantasy role-playing game" (P. 12(m) P 131).  It 
really has advanced neither argument nor evidence to counter 
Mayfair's position that the use of the term "fantasy campaign" is 
a nonviolation.
	TSR's Mem. 29-31 explains that its purpose in preventing 
Mayfair from stating that Role Aids were suitable for use with 
other role-playing games as well as AD & D was to protect TSR's 
trademark from becoming generic.  Sounding another variation on 
the same theme, TSR's R. Mem. 9 asserts that "Mayfair's 
advertising campaign promoting ROLE AIDS modules as suitable 'for 
any fantasy role-playing game on the market' harms the reputation 
and goodwill of the ADVANCED DUNGEONS & DRAGONS mark as 
representing a unique brand of products."
	That is really nonsense.  As Mayfair's Mem. 11 asks 
rhetorically: If the producer of Gatorade claims its drink is 
great for football players and also claims it is great for 
participants in any high-energy sport, is it reasonable to argue 
that football is at risk of becoming generic for high- energy 
sports as a result thereof? Indeed, the restriction that TSR 
incorrectly contends was violated in the respect now under 
discussion [FN21] is the one aspect of the Agreement that appears 
to find no legitimate justification in TSR's trademark rights.  
It seems to be purely anticompetitive and hence likely 
unenforceable as an unlawful extension of the trademarks.
	*10 For present purposes, though, that issue need not be 
decided.  It is enough to find (as this Court has) that TSR loses 
as a matter of contract. Mayfair is entitled to dismissal of the 
claim that the Agreement was breached by the To Hell and Back 
Again product description sheet.
	C. Freedom of Choice Campaign
	In late 1991 Mayfair began the "Freedom of Choice" 
advertising campaign (D. 12(m), P. 12(n) P 127).  Mayfair has 
admitted that its Freedom of Choice Poster that stated Role Aids 
products "were for use with any role-playing game" violated the 
terms of the Agreement (P. Ex. 31, D. 12(n) P 96).  But its Mem. 
6 says that once it realized that in April 1992, it promptly 
terminated the use of promotional materials having the non-
complying language (Santana Aff. P 4).
	Mayfair presents no evidence that it then attempted to 
recall the Freedom of Choice materials, but its Mem. 7 states 
that such attempts are futile (Bromley Aff. P 34, Santana Aff. P 
6).  TSR denies that Mayfair made good faith efforts to retrieve 
noncomplying materials (P. 12(n) PP 130, 150), pointing out that 
Bromley based his conclusion of the futility of recall attempts 
merely on the attempted recall of one shipment of Psionics 
(Bromley Aff. P 34).  In fact, Mayfair's Jennifer Santana 
testified that Mayfair made no attempts at recall of the Freedom 
of Choice materials (Santana Aff. P 6).  It does not necessarily 
follow from the futility of Mayfair's attempts to recall the 
Psionics modules that had been sent to stores that Mayfair would 
have been equally unsuccessful in.recalling advertising 
materials.  After all, stores may be willing to comply with a 
request to refrain from posting an advertisement or to replace 
the advertisement with another, but may be reluctant to send back 
what they believe will be a popular product.
	Mayfair's Mem. 10 also contends that its acknowledged breach 
of the Agreement by the Freedom of Choice campaign literature is 
not material because "the trade was correctly describing Role 
Aids as being usable in any fantasy role-playing game for a long 
time prior thereto" (D. 12(m) P 128).  TSR denies that, but its 
denial hardly seems in good faith in light of TSR's own Ex. 33, a 
collection of catalog pages listing Mayfair Role Aids products.  
Capital City's Game Buyer's Monthly for July 1990 and its March 
1991 releases describe Mayfair's "Witches" and "Lizardmen" 
modules as suitable for "any fantasy roleplaying adventure or 
campaign" and "for use with any fantasy RPG" (P. Exs. 33-1 and -
2);  Capital City"s "The Premium Specialty Collection" May, 
October and December 1990 issues describe Role Aids products as 
"generic" (P. Exs. 33-19, -20, -21);  Wargames West's 1991 Spring 
catalog states that Role Aids modules "can be used with any 
fantasy role-playing system, especially TSR's Dungeons & Dragons 
and AD & D systems" (P. Ex. 33-25).  Several of the pages in P. 
Ex. 33 list Role Aids modules under the category "Generic Fantasy 
Source Books and Modules" (P. Exs. 33-3 through 33-13, 33-22 and 
33-23) and describe Lizardmen and Psionics as "universal," "for 
use with any RPG" or "designed to adapt to any fantasy 
roleplaying game system" (P. Ex. 33-14 through 33-16, 33-24), but 
no date of publication is shown on those exhibits.
	*11 Mayfair has presented Bromley's affidavit testimony that 
the only catalogs in P. Ex. 33 that did not precede the Freedom 
of Choice campaign are P. Ex. 33-17 and 33-18 (Bromley Aff. P 
14).  Although the last page of Exhibit 33 (left unnumbered by 
TSR) from the 1991-92 Winter/Spring Wargames West Catalog may 
have come out after the Freedom of Choice campaign, TSR has made 
no effort to provide the date of those materials.  However, given 
the substantial number of dated exhibits that describe Role Aids 
modules generically, the undated exhibits provide only cumulative 
information.
	To be sure, the fact that others describe Role Aids in a 
manner that Mayfair agreed not to use does not release Mayfair 
from its promise.  But as.has already been indicated in the 
discussion about the To Hell & Back Again product description 
sheet, there is more than a serious question whether that promise 
is valid and enforceable.  Indeed, the usages by others that 
comprise the various subparts of P. Ex. 33 graphically illustrate 
the total lack of connection between a statement that Role Aids 
has multiple uses and any conclusion that one of those uses--that 
in conjunction with AD & D--somehow renders AD & D generic.
	Again this Court would be strongly inclined to consider 
invalidating that component of the Agreement.  But once again it 
is unnecessary to take that step, for at worst this claimed 
violation of the Agreement is both de minimis and in the past.  
It has potential relevance only on the issue of the relief to 
which TSR may be entitled.
Remedies
	This opinion has earlier referred to the bifurcation of 
issues that has deferred the question of damages sustained by TSR 
as the result of Mayfair's several violations of the Agreement.  
Consequently all that now remains for consideration is whether 
TSR's prayer for rescission of the Agreement should be granted or 
denied.
	Not surprisingly, Wisconsin law adheres to universal 
equitable principles in defining the conditions that entitle a 
party to rescission of a contract for its breach.  Any party who 
would rescind a contract must do so within a reasonable time 
following its discovery of the breach (Thompson v. Village of 
Hales Corners, 340 N.W.2d 704, 718 (Wis.1983)(six-month delay in 
asserting rights bars rescission)).  Rescission is not the 
appropriate remedy for every breach of contract--rather "the 
nonperformance must be substantial and the breach so serious as 
to destroy the essential objects of the contract" (Seidling v. 
Unichem, Inc., 191 N.W.2d 205, 207 (Wis.1971)).  And rescission 
must "restore the parties to the position they would have 
occupied if no contract had ever been made between them":  Each 
party must return to the other all benefits received under the 
contract (id. at 208;  First Nat'l Bank & Trust Co. v. Notte, 293 
N.W.2d 530, 539 (Wis.1980)).
	Merely to state those basic principles is to demonstrate why 
rescission is inappropriate here., Whether or not TSR acted with 
sufficient promptness after it learned of Mayfair's breaches, 
[FN22] the parties' many years of performance under the contract 
obviously render its unwinding far more difficult and less 
appropriate (a point elaborated on in a moment).  Next, it can 
hardly be said that the breaches identified here have 
"destroy[ed] the essence of the contract"--it will be remembered 
that the presentation of Mayfair's Role Aids products to the 
ultimate consumer has always (with one minor and inadvertent 
exception) adhered to the standards that TSR itself established 
to assure that Mayfair would not poach on its preserves (a point 
also elaborated on in a moment or two).
	*12 Perhaps most importantly, there is no way in which the 
parties can effectively be restored to the status quo ante 
contract--no way in which the omelet can be unscrambled and put 
back into the egg.  It is truly an impossibility, given the time 
span from 1984 to the present during which the parties have 
functioned under their contract, to "restore the parties to the 
position they would have occupied if no contract had been made 
between them." In terms of the restoration of benefits, just how 
can TSR repay whatever benefit it has derived from the ongoing 
Role Aids advertising of AD & D as the only role-playing game 
expressly mentioned on Mayfair's products, or it has derived from 
the continued reinforcement of the AD & D trademarks over the 
intervening years without any attack by Mayfair?
	In sum, this case does not at all call for TSR to obtain the 
equitable benefit of contract rescission, beyond whatever damages 
(not yet established) that it is able to demonstrate flowing from 
the breaches shown here.  For over eight years it has derived the 
principal benefits that it bargained for in the Agreement: 1. To 
the consuming public, Mayfair has meticulously observed the 
requirements marked out by TSR--standards that make plain its 
nonsponsorship of Mayfair's competing Role Aids modules, while at 
the same time keeping the AD & D name before the consumers, with 
TSR identified as its source. [FN23] 2. TSR's trademarks have 
remained without challenge from Mayfair, promoting the continued 
entrenchment of D & D and AD & D as fixtures in the consuming 
public's minds.
	As against that, TSR has shown a number of contract breaches 
by Mayfair--but not such as to demand rescission.  In some 
instances Mayfair has cured the problems on its own, or (as in 
the Demons situation) has promptly stated its intention to 
correct the inadvertent error.  In one instance it terminated the 
employee responsible for misreading the Agreement's directives.  
And there is no reason to believe that it will not promptly 
correct the remaining breaches that have been found here.
	Moreover, this opinion has twice commented on the apparent 
overreaching by TSR in one part of the Agreement:  prohibiting 
Mayfair's truthful advertising of the fact that Role Aids 
products may be utilized by members of the consuming public in 
conjunction with rival role-playing games as well as with AD & D. 
That restraint inhibits not only Mayfair's market among consumers 
who have purchased (or might intend to purchase) role-playing 
games from TSR's competitors but (not incidentally) also tends to 
lessen the demand for those competitive games among purchasers of 
Mayfair's Role Aids products.  And again those anti-competitive 
measures appear to find no rational support in TSR's legitimate 
goals for protecting the integrity of its own trademarks. [FN24]
	Whether or not those considerations invalidate that 
particular restraint of trade has not been decided here, because 
it need not be.  But those considerations do tend to place in 
sharper focus the effect of a rescission of the Agreement here.  
Because of AD & D's prominence in the marketplace, any revocation 
of Mayfair's permission to refer to AD & D with appropriate 
disclaimers could bid fair to destroy Role Aids as a competitor 
for the marketplace with TSR's own products intended for use in 
that role-playing game. [FN25]  What is.reflected in the total 
record here simply does not support this Court's throwing its 
weight into the competitive scales in that fashion, when TSR has 
a fully adequate remedy in the form of its recouping any damages 
that it can prove and its obtaining an injunction compelling 
Mayfair's correction of past violations and preventing new 
violations. [FN26]
Conclusion
	*13 TSR's motion is granted to the extent that this Court 
finds the following materials to have violated the Agreement:  
the 1990 Mayfair Trade Catalog with the Invincible overlord 
compatibility statement, the Invincible overlord writers' 
guidelines, all the challenged Role Aids materials except for the 
To Hell & Back Again product description sheet and the Freedom of 
Choice materials.  TSR's motion is denied as to Mayfair's use of 
the Gygax statement on the Invincible Overlord materials.  
Mayfair's motion is also denied as to that use of the Gygax 
statement, while its motion is granted as to the To Hell & Back 
Again product description sheet.  As to remedies for the 
adjudicated violations, TSR's prayer for rescission of the 
Agreement is denied, and the scope of appropriate relief is 
deferred pending further submissions by the parties.

	FN1. According to TSR's Mem. 1 n.1, its success on that 
claim "would subsume the relief it seeks for trademark 
infringement."  And because Mayfair is not now distributing the 
book that gave rise to TSR's copyright infringement claim, "the 
crux of the current dispute would be decided" (id.).

	FN2. Because Mayfair's Statement of Additional Facts was 
appended to its GR 12(m) statement, the D. 12(m) and P. 12(n) 
numbering began where the P. 12(m) and D. 12(n) numbering left 
off.

	FN3. Trademarks involved include "Advanced Dungeons and 
Dragons," "AD & D," "Dungeons and Dragons" and "D & D." For 
brevity's sake, this opinion refers to each set of trademarks by 
employing only the abbreviated version.  But where either set of 
initials is used in the singular, it will stand for the full-
length mark ("Dungeons and Dragons" or "Advance Dungeons and 
Dragons") unless otherwise specified.

	FN4. Mayfair's responsive statements have devoted a 
substantial amount of rhetoric to disputing the characterization 
of Advanced Dungeons and Dragons and Dungeons and Dragons as 
"games," contending in part that TSR does not "own" either of 
them (see D. 12(n) PP 7-10, 12, 14, 15, 17, 23).  For those 
propositions Mayfair cites to Bromley's Aff. P 3: A role-playing 
game is quantified, interactive storytelling, in accordance with 
a series of rules and algorithms which define how the players 
interact with one another and the game master.  A role-playing 
game is intangible, does not have a brand or trademark and is not 
itself sold or owned.  Books and reference information may be 
used but are not essential for a role- playing game. 
Interestingly, Mayfair does not dispute TSR's contention that 
Mayfair "produces its own role-playing games" (P-D P 22).  
Moreover, Mayfair is not consistent in its own semantic 
insistence.  It states at D. Mem. 10 that "Advanced Dungeons and 
Dragons is different from other role-playing games because it is 
based on different rules."  As TSR has pointed out, the only 
function of Mayfair's contentions seems to be an end run around 
the Agreement's ban on its contesting the validity of the AD & D 
trademarks.

	FN5. David Arneson ("Arneson") was co-creator of Dungeons 
and Dragons.

	FN6. Although the Agreement characterized that form as an 
"oval," its physical depiction in P. Ex. 1 Ex. B is that of an 
oblong cartouche drawn to appear three-dimensional.  It seems 
that the parties are better developers of games than they are 
lexicographers.  This opinion will use "cartouche" rather than 
"oval" to refer to the emblem.

	FN7. Mayfair's 1990 Trade Catalog did contain a footnote 
marker after the AD & D trademark.  Ten pages later "in small 
print at the bottom of the page" was a disclaimer of TSR"s 
approval of Mayfair's use of its trademark (P-D P 50).  TSR also 
points out, without alleging violation of the Agreement, that 
both the 1990 Mayfair catalog and the Mayfair customer reply card 
(P. Ex. 16) identified Invincible Overlord as adaptable for use 
with any fantasy role-playing system (P. 12(m) PP 50, 56).  
Although Agreement Ex. B P 6 prohibited Role Aids modules that 
utilized the trademark statement from also including statements 
that such modules are suitable for use with other role-playing 
games, TSR has not attempted to argue that use of the AD & D 
trademark on a non-Role Aids product is governed by a similar 
restriction.

	FN8. One issue that TSR has steered clear of is how, given 
the standards of trademark law as to likelihood of confusion and 
confusing similarity, it could create an unlimited exception to 
the Agreement's restrictions on Mayfair to allow Mayfair to deal 
with Gygax for use of the D & D trademarks, and yet cavil at 
Mayfair's acquisition of rights that Gygax apparently had in the 
AD & D trademarks.  Before TSR will be heard to make anything out 
of that aspect of Mayfair's claimed breaches (an issue deferred 
by the summary judgment context of this opinion), it has some 
more explaining to do.

	FN9. Moore testified that the legal department reviewed ads 
before placement for misuse of TSR's trademarks (Moore Dep. 18-
19).  Moore also testified that when he took the editorship of 
Dragon Magazine in 1986, policies for review of ads may have been 
"in flux" and he was "not sure at what point they settled out" 
(id. at 19).

	FN10. What has just been said in the text truly gives TSR 
the benefit of the most favorable reasonable inferences.  Even 
though waiver law speaks of a party's knowledge, the concept 
would seem to extend to charged knowledge as well--to prevent a 
party from playing ostrich.  Indeed, Shannon, 429 N.W.2d at 530 
speaks of what the party knew or should have known.  Thus final 
resolution of the issue will require examination of whether TSR 
should have known of the Invincible Overlord ads' contents, given 
its keen awareness of the importance of its trademark rights and 
of the nature of the role-playing game industry.

	FN11. Neither TSR's original Complaint nor its Amended 
Complaint had mentioned Invincible Overlord.

	FN12. Although the analogous statute of limitations for 
breach of contract has yet to run in this case, Wisconsin law 
allows application of a laches defense within the limitations 
period (Schafer v. Wegner, 254 N.W.2d 193, 196-97 (Wis.1977)).
	FN13. But see n.10.

	FN14. TSR could not have known of many of the Role Aids 
items until 1990 at the earliest.  That was the year in which 
Mayfair introduced the Witches, Psionics and Lizardmen modules.  
Those promotional materials would include an advertisement for 
"Psionics" (P. Ex. 20, D. 12(n) P 70) a flyer for the Witches 
module (P. Ex. 21, D. 12(n) P 65), a product description sheet 
for Witches (P. Ex. 28-1), the 1990 summer catalog (P. Ex. 18, D. 
12(n) P 63), the 1990 and 1991 trade catalogs (P. Exs. 17, 19, D. 
12(n) PP 72, 74), and the July 1990 and June 1992 Mayfair Games 
News letters (P. Exs. 25, 27, D. 12(n) PP 79, 81).  In addition, 
the product description sheets for People, Places and Things and 
Demons (P. Ex. 29-1 and -2) were for products to be introduced in 
1992 (P-D P 98).  One product description sheet (P. Ex. 28-2) is 
dated in 1988, while the rest are dated from 1983 to 1986 (P. 
Exs. 28-5 to 28-15).  Some materials are undated:  Mayfair's 
reply card (P. Ex. 16), Role Aids slick sheets (P. Ex. 22) and 
two Role Aids product description sheets (P. Exs. 28-3 and -4).

	FN15. Winter was, however, aware of media use of the 
trademark "Dungeons and Dragons" to describe role-playing games 
generically.  Winter also testified that most customers would not 
read the disclaimer language, and that at least some consumers 
might think that a Role Aids product was licensed by TSR (Winter 
Dep. 50-51).

	FN16. This is not said to be critical.  This Court earlier 
entered an order bifurcating liability from damages.

	FN17. TSR first saw the newly-developed Demons product at a 
trade show in late August 1992, after its summary judgment motion 
had been filed and briefing was under way (P-D P 107).  TSR then 
obtained leave to file a supplemental memorandum in support of 
its motion, in which it addressed the latest of Mayfair's claimed 
violations of the Agreement.

	FN18. [Footnote by this Court] It may also be noted that the 
AD & D trademark in the Dragon Magazine quote in Mayfair's 1991 
catalog is over twice as large as the print of the rest of the 
words in the sentence, and is also the largest descriptive print 
on the page except for the lettering on the photographs of the 
Role Aids modules.

	FN19. TSR's partial denial in its P. 12(n) P 135 is really 
ambiguous. That type of deliberate ambiguity will be construed 
against it, but it turns out to make no difference.

	FN20. Mayfair contends that TSR did not complain of 
Mayfair's use of the Dragon Magazine statement until the current 
motion for partial summary judgment was filed in June 1992 (D. 
12(m) P 43).  Although TSR denies that (P. 12(n) P 143), its 
citation to Williams Dep. 40-41 really does not support that 
position.  That makes no difference, however, given the 
allegation in Amended Complaint P 57: Mayfair has breached the 
Limited Use terms of the Settlement Agreement by its use of the 
TSR Trademarks in ... connection with certain of the Role Aids 
publications and related materials. Under the Rules' notice 
pleading regime, that is enough--TSR was not required to plead 
its evidence.  And Mayfair's use of the quote from Dragon 
Magazine in describing Undead, a Role Aids product, surely comes 
within the scope of the pleading's allegation.

	FN21. As indicated earlier, that contention is incorrect as 
a matter of contract construction:  TSR has acknowledged that 
"fantasy campaign" is different from "fantasy role-playing game," 
so that a prohibition framed in terms of the latter is not 
violated by a statement that speaks in terms of the former.

	FN22. There is understandably a very different and much 
shorter yardstick for rescission purposes than for the 
application of laches.  Laches actually defeats any claim of the 
aggrieved party, while the denial of the rescission remedy still 
preserves for that party the benefit of being made whole through 
the recovery of damages.  In this case it would seem that TSR has 
failed to meet the timetable defined in Thompson as a 
precondition to rescission, but whether or not that is so, TSR 
fails on the other grounds discussed here.

	FN23. Although Demons has been a single exception to 
Mayfair's strict adherence to the Agreement's specifications for 
Role Aids modules, there is no reason to discredit Mayfair's 
explanation that the contrast between the Role Aids name and its 
background in the final product turned out to be less than the 
original printers' proofs had shown.  It will be remembered that 
the Demons product came onto the market over 18 months after this 
lawsuit was brought, and after TSR had already launched its 
current motion.  What incentive would Mayfair have, after eight 
years of living by the Agreement's standards in designing all of 
its other product modules, to depart from that practice 
deliberately in the face of this litigation and a Rule 56 motion?

	FN24. If anything, it would seem that measures that would 
thus tend to promote AD & D's market domination would make it 
more likely, rather than less likely, that AD & D might become a 
generic term among consumers.  It is only necessary to recall 
such examples as Eastman's fight to prevent "Kodak" from entering 
the public domain, or Bayer's like fight as to "Aspirin" or GE's 
comparable fight as to "Frigidaire."

	FN25. Absent Mayfair's joinder in AD & D's prayer for 
rescission, it is assumed here that Mayfair is willing to 
continue to live with the specific ground rules set out in the 
Agreement, rather than having both parties relegated to the 
principles of law (such as fair use) that would apply in the 
absence of contract.

	FN26. It should be emphasized that this point is only an 
added fillip that demonstrates the soundness of denying TSR this 
specific equitable relief-- one to which it has not shown its 
entitlement based on the equitable principles that uniformly 
govern the availability of the rescission remedy.
END OF DOCUMENT


John H. Kim <jhkim-at-darkshire-dot-net>
Last modified: Tue Aug 15 15:07:28 2000