Judge Paul Crotty
As Brainteaser Publications, Ward has published the successful "Scratch & Solve Hangman" word game books (S&S books) for 20 years. Initially published in Australia and New Zealand, the S&S Books were introduced into the United States in 2005, and are subject to registered copyrights. Andrews McMeel Publishing (AMP) began publishing books based on the hangman game as part of its "Pocket Posh" series (PP Books) in 2008. In Ward's lawsuit asserting copyright and trade dress infringement, as well as common law unfair competition, district court dismissed Ward's trade dress claim—with leave to replead—but denied AMP dismissal of Ward's copyright infringement and unfair competition claims. Whether the illustrations or total concept and overall feel of the PP Books were substantially similar to those of the S&S Books was a "close factual question." In dismissing Ward's trade dress infringement claim the court concluded that despite explaining its distinctiveness based on both the color scheme used and general layout and spatial relationship of the various elements appearing on each page of his books, Ward's complaint fatally failed to mention functionality at all, let alone plead that his books' trade dress was nonfunctional.
