Hi
>> Lee creates a creature called a "Lizard Snark". It has a stablock we'll >> call "A". Lee PI's the name. Tom creates a creature called "Lizard >> Snark" with a statblock we'll call "B" and OGC's the name. They are >> created independently.
No such thing as created independently! (just because you claim never to have heard of Nike does not mean that you can start making shoes called Nike! - even if you do live on the moon)
But I can create a creature called Nike and I could even trademark that creature. In this case the two Lizard Snarks have different descriptions (the stat blocks) and as long as the descriptions are different, both claims to Lizard Snark are equally valid.
Lee should sue Tom for using his PI. The fact that Tom was not aware that Lizard Snark already existed is no defence (Tom should have checked first). If this came to court then Lee would have to prove that he had created Lizard Snark and PI'ed it before Tom created did.
Checked what first? Tom created his Lizard Snark without knowledge of Lee's Lizard Snark. Lee has no grounds for suing Tom since the stat blocks are different.
If Tom had actually created his first and had OGC the name then it would not have been Lee's to PI in the first place. (you can only PI what you are allowed to - i.e. own or licence)
Lee can PI any name he pleases whether or not Tom has already OGC'd it. He's PIing his Lizard Snark, not al Lizard Snarks everywhere. Change the name to Zeus. Lee can PI his version Zeus all he wants. Tom can OGC his version of Zeus. It's the same situation here.
If Lee did nothing then he would be accepting that he does not have a case and Lizard Snark would become OGC for ever. There would be a maximum length of time that Lee could leave it before suing Tom, not sure what that would be, 12 months?, 10 years? (someone with some legal knowledge want to help out?).
We are not talking about trademarks. Don't refer to them in this discussion. And there is no set time period if we were discussion trademarks. The time period is whatever the trademark holder can get away with in front of a judge.
If you knew of the existence of both Lee and Tom then I would highly advise that you contact Lee. He may well be aware of the situation and is about to sue Tom and if he wins then he will be coming after you next!
This is why I don't use any material that PIs names of game objects (spells, monsters, feats, etc).
All of this is based on existing copyright law which is what the whole OGL and PI is based on (although of course no one really knows until it really does end up in court).
No, you are arguing trademark law. Copyright law expressly forbid the protection of titles. Want to write a book called Catcher in the Rye? Go for it. No one can stop you. Want to a make a book with a main character called Holden Caulfield? Go for it. Just don't call that book Catcher in the Rye.
The OGL is far more based on Contract law than Copyright law.
Joe
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