<<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.
>>
Hardly, for four reasons: PI can exist simply by trading a copy of your new game booklet to your friend (in secret, effectively); trademarks have very little weight until after they are used in open commerce. Trademarks protect on the basis of consumer confusion over a brand, so you aren't building up a lot of legal protection for the mark by giving your buddy, Bill, one copy and never giving anyone else a copy again.
Second, a trademark is often a mark in context. In one context Nike is deity. In another, it is a shoe. In the context of a deity you aren't utilizing the trademark. This makes it easier to avoid trademarks too.
Third, except for new trademarks, most trademarks are easy to find some trace of if you have a question in your mind -- except for highly localized trademarks, many nationally and internationally traded brands have a registered trademark or enough of an internet presence that you can find out something about them if you try.
Fourth, it is pretty easy to avoid, at least overt compatibility declarations, and this means that most of the compatibility / co-adaptability declarations that might get through are probably going to be implicit ones that may not directly involve a trademark.
I'd say this is a remarkably different situation than having to not use PI created by somebody in their basement. Having only used a trademark once, in your own basement 5 years ago, and never again, makes for a pretty weak claim to a trademark. It makes for a perfectly valid claim to PI, though.
<<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?>>
I would not conclude that, but I would instead conclude that they apply to all trademarks which could be reasonably identified as trademarks by the author, and I would expect that the onus is on the author to do a modicum of work to guarantee that trademarks are not being tossed about when compatibility & co-adaptability statements are made.
<<But I don't see consistency in "PI is only protected through derivation" vs.>
"Trademark is protected everywhere" when the language used for them is so
similar.>
I think the question at hand is not the plain language of the contract -- Mike clearly made a strict reading of the license, which, outside of intent, is viable.
If intent is considered, then the question is one of reasonableness. It is reasonably easy for a reasonable person to avoid compatibility declarations involving trademarks.
Let's say there's a trademark called "Other Games". If I said "my game is compatible with other games", then I haven't used the mark in trade, I've simply used the English language, with no intent to point the reader toward product compatibility. I'm pretty safe.
It is very difficult for the average person to avoid using words, terms, & concepts which are common to gaming, and which somebody may have declared as PI in their basement. Imagine if somebody declared: point costing, character point system, plot points, luck rolls, etc. as PI'd terms, and then sat around for a month coming up with 1000s of names for spells. That would be like a giant land mine field which somebody, some time, WOULD hit eventually.
I'm not saying these types of landmines can't be found in trademarks, but only it is about a thousand times easier to hit a PI landmine than a TM landmine.
Again, I say that if the Sigil is correct, then the license could basically not be enforced if it opened up people to wild lawsuits from basement PI creators across the globe, and then Section 14 would force reformation and said reformation would likely be in line with the intent of the license -- which is not to protect somebody's basement-created, non-distributed notions against independent invention.
Lee
