945 F.2d 1404 (7th Cir. 1991), 90-1678, M.T. Bonk Co. v. Milton Bradley Co.

Docket Nº:90-1678, 90-2807.
Citation:945 F.2d 1404
Party Name:M.T. BONK COMPANY and Mark T. Bonk, Plaintiffs-Appellants, v. MILTON BRADLEY COMPANY and Hasbro, Inc., Defendants-Appellees.
Case Date:October 16, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1404

945 F.2d 1404 (7th Cir. 1991)

M.T. BONK COMPANY and Mark T. Bonk, Plaintiffs-Appellants,

v.

MILTON BRADLEY COMPANY and Hasbro, Inc., Defendants-Appellees.

Nos. 90-1678, 90-2807.

United States Court of Appeals, Seventh Circuit

October 16, 1991

Argued Feb. 22, 1991.

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[Copyrighted Material Omitted]

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Elizabeth J. Guscott (argued), Chicago, Ill., for plaintiffs-appellants.

Richard G. Schultz, Steven H. Gistenson (argued), Foran, Wiss & Schultz, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, RIPPLE and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Mark T. Bonk invented and marketed a board game he entitled "Play it Again Juke Box," in which players were challenged to complete a phrase from a popular song after being given a few words of the lyrics. He sent the game to a number of toy and game manufacturers, including the Milton Bradley Company and Hasbro, Inc. (Milton Bradley), in an attempt to interest them in licensing it. Milton Bradley responded and a meeting was arranged.

At that meeting, a representative of Milton Bradley explained to Bonk that products under consideration are reviewed over the course of a series of meetings to determine if they will become part of the company's product line. Between each meeting, research and development is performed, modifications or changes may be made, and advertising presentations are developed. He was also informed that during the review process Milton Bradley will begin to negotiate a licensing agreement with the inventor. Bonk was warned that a product may be removed from the review process by Milton Bradley at any time for a number of reasons and that a product can even be canceled after reaching the manufacturing stage.

When asked what rights he had to the copyrighted song lyrics used in the game, Bonk responded that, while he had not acquired the rights to the lyrics, he was entitled to use them in the game.

A copy of Milton Bradley's standard licensing agreement was sent to Bonk's attorney for review. A letter attached to the agreement stated that much of the terminology of the agreement would become part of the conditions under which Milton Bradley would license the game. The standard contract set forth the rights and obligations of the parties and contained a provision that required the inventor to warrant that the product "does not violate or infringe any rights of others."

Two months later, another representative of Milton Bradley telephoned Bonk and informed him that the game would be presented at the next meeting, although the company was concerned about the use of the copyrighted song lyrics. Nevertheless, Milton Bradley remained interested in negotiating for licensing of the game. Several factors that would be involved in the negotiations were discussed and Bonk was informed that, in the event they were to reach an agreement, Milton Bradley would expect Bonk to stop distribution of the game.

Shortly thereafter, Bonk told the company he would discuss the matter with his attorney and that he wanted his attorney involved in any subsequent negotiations for the game.

Over the next several months, Bonk's attorney negotiated with Milton Bradley to

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establish a licensing agreement. Milton Bradley indicated it was concerned that there were copyright violations with the song lyrics used in the game and that resolution of this issue was critical.

In the end, Milton Bradley determined that Bonk had no right to use the copyrighted song lyrics in the game under "the Fair Use Doctrine." Milton Bradley canceled all negotiations with Bonk and the game was withdrawn from the review process.

Bonk brought an action against Milton Bradley alleging breach of contract. After trial, a jury returned a verdict in favor of Milton Bradley and against Bonk. Dissatisfied with the verdict and denial of his motion for a new trial, Bonk raises several issues on appeal.

First, Bonk argues that the district court erred in denying his motion for a new trial because the verdict was contrary to the evidence which showed that he had an oral contract or, alternatively, a contract by promissory estoppel, with Milton Bradley. Second, Bonk claims that the court's limitation of his counsel's examination of a witness and related comments by the district judge denied him a fair trial. And, finally, Bonk argues that the district court erred in awarding $31,111.10 in costs to Milton Bradley.

Our review of the district...

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