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Ward v. Andrews McMeel Publ'g, LLC

United States District Court, S.D. New York

August 1, 2013

MICHAEL WARD d/b/a BRAINTEASER PUBLICATIONS, Plaintiff, -
v.
- ANDREWS MCMEEL PUBLISHING, LLC, Defendant

Page 223

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Michael Ward, Plaintiff: Eleanor Martine Lackman, Joshua Scott Wolkoff, Cowan, DeBaets, Abrahams & Sheppard LLP, New York, NY.

For Andrews McMeel Publishing, LLC, Defendant: Robert Penchina, LEAD ATTORNEY, Levine, Sullivan, Koch & Schulz, LLP(NYC), New York, NY.

OPINION

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OPINION & ORDER

HONORABLE PAUL A. CROTTY, United States District Judge.

Plaintiff Michael Ward (" Ward" ) brought this action against Andrews McMeel Publishing, LLC (" AMP" ) on October 26, 2012, asserting claims of copyright infringement, trade dress infringement, and common law unfair competition. On February 2, 2013, AMP moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons discussed below, the Court GRANTS AMP's motion to dismiss the trade dress claim, with leave to replead, and DENIES AMP's motion to dismiss the copyright and unfair competition claims.

BACKGROUND[1]

Ward, doing business as Brainteaser Publications, has been publishing a highly successful series of " Scratch & Solve Hangman" books (the " S& S Books" ) for approximately twenty years. In the most basic form of the classic hangman word game, one player thinks of a word or phrase, which a second player is required to determine. The word or phrase is initially represented by a fixed number of dashes, which corresponds to the number of letters that it contains. As the second player guesses individual letters, the first player either fills them in above the dash corresponding to where that letter appears in the word or phrase, or draws one element of a man hanging from a scaffold if the letter does not appear anywhere. The game ends either when a diagram depicting a stick-figure hanging from the gallows is completed, or when the second player has correctly determined the entire word or phrase. The exact nature of the diagram may vary, with some players choosing to draw the gallows before the game begins, while others may draw individual elements of the gallows as part of the game or draw a more detailed stick figure in order to provide more chances to guess letters. (See generally Ex. 1.) Since the books provide the puzzles, they are designed to be played solely by one player.

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Thus, " [w]hen you play the game . . . , either you win or you die. There is no middle ground." George R.R. Martin, A Game of Thrones 488 (1996).

The S& S Books were initially published in Australia and New Zealand. They were introduced into the United States market in 2005 and are subject to registered copyrights. To date, nearly two million copies have been sold. In or around 2008, AMP began publishing books based on the hangman game as part of its " Pocket Posh" book series (the " PP Books" ). Ward alleges that the PP Books " incorporate the entire concept, feel, and design of the S& S . . . Books" (Compl. ¶ 18), taking their " overall appearance and trade dress," " lift[ing] their layout and style of the text . . . and even the appearance of the typefaces," " misappropriate[ing] the style and appearance of the hanging-man drawing" (id. at ¶ 19), and " copy[ing] a substantial number of the answers." (Id. at ¶ 20.) Copies of both PP Books and S& S Books have been provided to the Court, and the Complaint included an exhibit reproducing puzzles from an S& S and PP Book, reproduced below. The first image is of Plaintiff's puzzle, and the latter is Defendant's:

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DISCUSSION

Since this is a motion to dismiss, the Court " accept[s] as true all of the factual allegations contained in the complaint" and construes it in the light most favorable to the plaintiff. Bell A. Corp. v. Twombly, 550 U.S. 544, 572, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court only " assess[es] the legally feasibility of the complaint; " it does not " assay the weight of the evidence which might be offered in support thereof." Levitt v. Bear Stearns & Co., 340 F.3d 94, 101 (2d Cir. 2003). To state a facially plausible claim, a plaintiff must plead " factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). " A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of ...


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