In 1982, Milton Bradley launched an aggressive campaign for their new board game called Dark Tower. They hired Orson Welles to star in and narrate the commercials during Saturday morning cartoons. His iconic voice gave a dramatic overview of the game and upon conclusion, Welles declared, “I was victorious.”
It appeared as though Milton Bradley’s campaign to market the seemingly unique board game was right on track to making Dark Tower another one of their classics. The game contained a sleek black electronic tower, a novel concept at the time, to navigate the gameplay.
There was only one catch: Milton Bradley was already being accused of stealing the game design. Alan Coleman and Roger Burten, two independent board game designers, had pitched their idea for a similar game to Milton Bradley 2 years before the Dark Tower ad campaign had been released. They had created a microprocessor-controlled game prototype set in space, called Triumph and had approached Milton Bradley as a possible licensee to market and manufacture the game for them.
Triumph’s distinctive element and the main trade secret involved was the central tower’s physical structure and functionality. It was a rotating, computerized microprocessor controller. It had pictures and sound cues to indicate different moves and events within the game. It sat in the middle of a round board with different locations and raised pieces.
Dark Tower had similar functionality. It would store gameplay information without sharing the specifics with the players. It also kept track of events and inventory and was capable of changing based on player choices, influencing the future course of events. The players could privately accumulate items to help them along their journey and even affect other players by stealing their items with curses.
Before hearing their pitch for Triumph in 1980, Milton Bradley required that Burten and Coleman sign a non-disclosure waiver form. Following their meeting, Milton Bradley held onto the Triumph prototype and evaluated it thoroughly at its plant. Just under a month later, Burten and Coleman had been informed that Milton Bradley was not interested in licensing the game.
After several attempts to pitch the game to other manufacturers that year, Burten and Coleman had both given up hope and decided to move on. That is, until early 1981, when the two inventors attended a toy fair in New York City. While exploring the new games on display, they saw the first public exhibit of Milton Bradley’s new electronic board game, Dark Tower. Burten and Coleman became immediately concerned about the similarities. They accused Milton Bradley of stealing their Triumph game design and reimagining it as Dark Tower, only changing from a setting in space to a medieval theme. As expected, Milton Bradley denied all charges, refusing that Burten and Coleman were due any royalties. Dark Tower went on to enjoy great commercial success and Triumph remained unknown.
Burten and Coleman proceeded to file suit in Rhode Island Federal District Court and claimed Milton Bradley had misappropriated the trade secrets demonstrated during their meeting regarding the Triumph central device. They indicated that maintaining possession of the microprocessor for several weeks gave them the ability to study it thoroughly inside and out. Following a lengthy trial, a jury awarded Burten and Coleman $737,058.10 for lost royalties, based on Milton Bradley’s profits from the sale of Dark Tower.
Milton Bradley decided to fight the decision. They asked the court to set aside the jury’s verdict and based their case on the non- disclosure waiver form that Burten and Coleman had voluntarily signed at their initial Triumph demonstration. The company’s argument maintained that the agreement disclaimed any relationship between the two parties, hindering the establishment of any confidentiality between them.
The confidentiality of the relationship between the parties was a critical element of Burten and Coleman’s trade secret claim. Without the written waiver, a confidential relationship would have existed and Milton Bradley’s behavior would have constituted a breach of that relationship. Because it did exist, the court found in favor of Milton Bradley, giving them protection from liability and proceeded to set the jury verdict aside.
Burten and Coleman followed up by filing a claim in the First Circuit Court of Appeals in Boston, which reversed the district court’s decision and proceeded to reinstate the original jury verdict. The Court of Appeals declared that a confidential relationship would protect a trade secret and can be defeated if both parties involved specifically disclaim that such a relationship is in existence. Unfortunately for Milton Bradley, the court found that their non-disclosure waiver agreement did not explicitly waive a confidential relationship between the parties. Based upon this decision, Milton Bradley paid Burten and Coleman the royalties determined by the initial jury verdict.
This case contains an important study on the law of trade secret misappropriation. It demonstrates that a written non-disclosure agreement is not absolutely necessary. There is an “implied contract” of confidentiality in many commercial relationships.
Milton Bradley also showed that although a trade secret owner may “sign away” this mantle of confidentiality, the law is highly protective of inventors. In Milton Bradley’s case, the law’s protectiveness showed itself in the court’s unwillingness to enforce a waiver that was not explicit.
Milton Bradley stopped manufacturing Dark Tower after just one year, following the court’s decision. Recently, complete sets of the board game can be found fetching over $400 on eBay, an app has been designed for any dedicated player without a working tower and several clubs and websites exist in tribute to Dark Tower’s legacy. The game itself has continued to cause quite a stir 35 years later, but perhaps the biggest surprise is the impact it has had on the legal rights and views regarding trade secrets.