First, remember: I want your interpretation to be correct.
Given that, please tell me how your logic applies to the next line in Section 7: "You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark." Unless "any" has a different meaning in front of "Product Identity" than it has in front of "Trademark or Registered Trademark", your very logic seems to make Trademark every bit as complicated as PI.
Clearly, "Registered Trademark" is pretty easy to work with - there is always a "list" of Registered Trademarks easily on hand at the US Government website.
Trademarks are indeed a slightly different beast. However, I think there's a difference here... look at the difference in what you're "doing with them."
The OGL does not trump copyright law, but rather works with it.
Under copyright law, you cannot Use my copyrighted work.
Under copyright law, certain things - notably many of the things that can be designated as Product Identity - CANNOT be copyrighted nor turned into copyrighted material (there is a thread in the Publisher's section of ENWorld to this effect).
Under CONTRACT law, I give you the right to use some of my copyrighted work (the OGC) and in return, you agree not to exercise your right to Use certain things that copyright law would otherwise allow you to use (PI).
I like to think of it this way, and it may help to do so - the OGL's 7th Section may be likened to an agreement wherein I offer you $5 not to use the words "frumple," "hiccup," and "superfly" in any of your works (these three words are what I have designated as my Product Identity). With that in mind, let's look at Section 7.
"7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity."
Let's chop it off right there for the moment - you are expressly forbidden from using PI at all unless I give you specific permission. In other words, it's like I paid you $5 not to use "frumple," "hiccup," and "superfly." With me so far? You can't write them, say them, or otherwise use them. In other words, all instances of those words must be purged from your document.
Now let's look at what we're agreeing to do with Trademarks...
"You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark."
Note that this is less stringent. You can't Use PI at all. Nowhere in your work can you type "frumple." With Trademarks, you are only allowed not to indicate compatibility or co-adaptability. So if I had a trademark on "Frungy Cola(TM)" nothing in the OGL forbids you from referencing "one bottle of Frungy Cola(TM)" on a character's equipment list (provided you complied with normal law regarding the referencing of trademarks - I'm not familiar with exactly how this works, but I think you'd need something like, "Frungy Cola(TM) is a trademark of Frungy Soft Drinks, Inc."). You couldn't say, "this product is compatible with Frungy Cola(TM)" however.
See the difference? You can't Use PI at all because you agree not to in the terms of the OGL. You can use Trademarks in the same way you could in a non-OGL work except that you can't say you're compatible - because you only agreed to shy away from "compatibility claims" with Trademarks in the OGL.
We'll now finish Section 7.
"The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity."
Basically, it just says that even if you get an agreement to use their PI, it's still theirs, not yours. Nothing exciting there.
But I think it's interesting that there are significant differences in the "restrictions" that you agree to with regard to PI and Trademarks in the OGL itself. The fact that there are significant differences tells me that these could be read as 7a and 7b, and that my argument applied to PI need not apply to Trademarks, because the set of restrictions is materially different.
So from your logic, do you believe that the ONLY Trademarks and Registered
Trademarks covered by Section 7 are those included within a work from which
you derive, and which you list in Section 15? If so, that would lead to an
interesting observation: "Dungeons and Dragons" is a trademark which, BY
DESIGN, never appears in ANY OGC. So your PI logic, when applied to
Trademarks, would seem to NOT protect the single Trademark which that clause
was originally designed to protect. I don't think that can be right at all.
(A court may have other ideas...)
Again, you agree to different sets of restrictions regarding Trademarks than you do with OGC. So I think it is quite reasonable to expect a court not to have to apply the "only PI in the chain" logic to trademarks.
Now I can reconcile your logic with Wizards' clear intent in the license in two ways:
1. Unregistered Trademarks, to be protected by Section 7, must appear in the
source work. Registered Trademarks, however, have an identifiable list
(again, by definition), and thus are automatically protected by Section 7
whether they appear in a source work or not.
2. In some way I cannot comprehend, Trademarks are different from Product
Identity -- yes, I know they're different, but read on -- in such a way that
"You agree not to Use any Product Identity..." automatically means "from any
source from which you derive" (or perhaps "from any source from which you
directly derive"), but "You agree not to indicate compatibility or
co-adaptability with any Trademark or Registered Trademark..." automatically
means "no matter what it applies to".
That's exactly what I mean. Again, look at the terms...
you agree not to USE PI you agree not to indicate compatibility with a Trademark.
Obviously, there are more uses than just indicating compatibility, indicating that the clear intent of the OGL is to distinguish Trademark and PI as entirely separate beasts.
Right now, your very reasonable theory for clearing up PI confusion seems to
increase Trademark confusion.
I don't think so at all. PI has no existence/meaning outside of the OGL. Trademarks do. Hence, they are clearly two separate and distinct things. It seems quite reasonable to me to think that since Trademarks are already well-defined legal entities, there is no need to lump them into the same category as PI.
PI does not exist outside the OGL, therefore it must be explained, defined, and a set of restrictions created all within the OGL.
Trademarks and their acceptable uses already exist and are explained and defined outside the OGL. The OGL merely adds one additional restriction to your use of them.
I hope I'm explaining my point all right, but my wife is here so I have to leave work (where I'm posting from). More later, perhaps, if my points were unclear.
--The Sigil
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