Flunked Tests

Drunks and trademarks lose

The annual spring flood of major U.S. Supreme Court decisions is still to come, but last week, after a brief recess, the Justices issued a series of rulings. One concerned an intriguing case involving drunken drivers. In disposing of hundreds of cases with cursory orders, the Justices left intact an appeals-court ruling on the game of Monopoly.

Choice Consequences. Mason Neville, 45, had allegedly consumed nearly a case of beer when two policemen in Madison, S. Dak., pulled him over for running a stop sign. Asked to take a blood-alcohol test, Neville refused, even after a warning that failure to take the test could lead to a one-year loss of his driver's license. Could his refusal be used as evidence at trial? South Dakota's top court said no, but last week the Supreme Court said yes.

During a crackdown on drunken drivers, South Dakota enacted a 1980 law admitting such evidence. But the state supreme court concluded that the privilege against self-incrimination is violated if a driver is not free to say no to a Breathalyzer or blood test without fearing that his refusal could be used as evidence. Writing the U.S. high court's 7-to-2 decision, Sandra Day O'Connor contended that there was no compulsion, since the driver was free to take the test. The choice, she admitted, "will not be an easy or pleasant one for a suspect to make. But the criminal process often requires suspects and defendants to make difficult choices."

Neville has not yet been tried and may still escape punishment because the South Dakota Supreme Court based its decision not only on the federal Constitution but also on the state's constitutional guarantee against selfincrimination. Even so, says South Dakota Attorney General Mark Meierhenry, "looking at the war on drunken drivers nationally, we won an important victory. This law does aid in prosecution." Sixteen states have "refusal-as-evidence" laws like South Dakota's. So does the District of Columbia, which reports that the law has cut by half the number of drivers who decline to take the test.

No Monopoly. Ralph Anspach wanted to teach his son a lesson about the evils of a monopoly. Some lesson. It took a nine-year legal battle and $200,000 in lawyers' fees, but last week he made his point. The nation's largest producer of family board games, Parker Brothers, no longer has a monopoly on the name Monopoly.

Anspach, a San Francisco State University economics professor, devised a board game for his son in which anticompetitive behavior landed a player in jail. He decided to market his creation in 1973 and jauntily christened it Anti-Monopoly. Parker Brothers, which has been making Monopoly since 1935, warned him in two "hellfire and brimstone" letters to change the name. After one court ruled against Anspach, Parker Brothers buried 40,000 copies of Anti-Monopoly in a dump in Minnesota. But a U.S. appeals court eventually ruled in favor of the professor, holding that the name Monopoly had become generic and that a trademark is lost when it "primarily denotes a product, not the product's producer." Parker Brothers tried a final roll of the dice in the Supreme Court, but last week the Justices declined to review the appeals-court decision. Anspach--and anyone else--may use the Monopoly name, though Parker Brothers retains the rights to the game itself.

Many legal experts consider the decision an aberration and hope that other courts will ignore it, but the new test will hardly make it easier to protect trademarks. Among those lost over the years: Thermos, Aspirin, Cellophane, Zipper and Yo-Yo. Xerox fights desperately with ads and public relations efforts to keep its name from slipping into generic usage. The makers of Sanka are waging the same war. Anspach had sold 525,000 copies of Anti-Monopoly before he was stopped. (Parker Brothers sells more than 2 million of the original each year.) He now hopes to get his games back on the shelves, as well as to dig up the buried ones. After that? He has already developed Anti-Monopoly II and--oh yes--he plans to proceed with an antitrust suit against Parker Brothers. This file is automatically generated by a robot program, so viewer discretion is required.