Ultimately, I think the question boils down to this:
quote:
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(e) "Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity, and which specifically excludes the Open Game Content;
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In order for WotC to claim PI on the term "d20," it must fall into one of the above areas. Let's play "process of elimination."
"d20" is not a product name.
"d20" is not a product line name.
"d20" is not a logo - there is a "d20 logo" but that is separate and independent from the term "d20"
"d20" is not an identifying marks nor trade dress, as many items and systems use icosahedrons
"d20" is neither an artifact nor creature nor character.
"d20" is not a story nor storyline nor plot nor thematic element nor dialogue nor incident nor language nor artwork nor symbol nor design nor depiction nor likeness nor format nor pose nor concept nor theme nor visual or audio representation.
"d20" is not the name or description of a character, spell, enchantment, personality, team, persona, likeness, or special ability.
"d20" is not the name of a plane, location, environment, creature, equipment, magical or supernatural ability or of a logo, symbol, or graphic design.
"d20" is not a trademark nor a registered trademark ("d20 System" is, but "d20" is not)
The term "d20" is not owned by WotC - it has demonstrably existed in common gaming parlance for years (Palladium books springs immediately to mind as a company that has used the term "d20" in its books for over a decade, I'm sure there are others).
So it fails ALL of the tests for "can this be claimed as PI?"
Furthermore, PI must specifically exclude Open Game Content (see the final line... "and specifically excludes Open Game Content"). "d20" was entered into Open Game Content as of version 3.0 of the OGL. Note that the generic term "d20" as used to represent an icosahedral die, was added to the canon of OGC in the 3.0 SRD, Basics section. From the 3.0 SRD, "Basics" Section:
quote: --------------------------------------------------------------------------------
This material is Open Game Content, and is licensed for public use under the terms of the Open Game License v1.0a.
DICE NOTATION
These rules use the following die notations: � d4 = four sided die � d6 = six sided die � d8 = eight sided die � d10 = ten sided die � d12 = twelve sided die � d20 = twenty sided die
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Clearly, the OGC designation in 3.0 included "d20."
Thus, because "d20" was Open Game Content, WotC cannot later call it Product Identity, per the terms of the Open Game License itself... because, in essence, "Product Identity cannot include Open Game Content."
I think it goes somewhat back to the "infringing upon PI" argument we had a while back - if you create Joe the Fighter in 2001 and PI the name in Bob's Book Of Stuff, and I create another fighter that I name "Joe the Fighter" in 2002 and make him OGC in Billy's Book of Stuff, have I infringed your PI and am I in violation of the OGL? I believe the answer is, "if I am (or possibly "should be") aware of your PI, yes... otherwise, no."
Let's reverse that. Suppose I create "Joe the Fighter" in 2001 and OGC him and later you create another "Joe the Fighter" in 2002 and decide to PI him. Is your PI designation made invalid? I think, again, the answer is, "if you were aware of my Joe the Fighter, then your PI designation is invalid because you knew 'Joe the Fighter' was OGC and PI specifically excludes OGC... hence you can't PI it." Though, I assume if you weren't aware of my version of "Joe the Fighter" your claim might stand up.
At the end of the day, it will be very hard for WotC to claim ignorance, since WotC itself released "d20" as Open Game Content. I have a hard time thinking they'll be able to convince anyone that they didn't know it was already Open Game Content - since they were the ones who made it so - when they released version 3.5 of the SRD.
Again, IANAL, but claiming "d20" as PI seems to be an invalid claim on three counts...
One: "Product Identity" ... specifically excludes the Open Game Content and "d20" was already Open Game Content (and WotC can't claim ignorance as they were the ones who released it).
Two: "Product Identity" means product and product line names, logos and identifying marks including trade dress; artifacts; creatures characters; stories, storylines, plots, thematic elements, dialogue, incidents, language, artwork, symbols, designs, depictions, likenesses, formats, poses, concepts, themes and graphic, photographic and other visual or audio representations; names and descriptions of characters, spells, enchantments, personalities, teams, personas, likenesses and special abilities; places, locations, environments, creatures, equipment, magical or supernatural abilities or effects, logos, symbols, or graphic designs; and any other trademark or registered trademark -- "d20" falls under none of the acceptable categories and as such cannot be PI'd.
Three: clearly identified as Product identity by the owner of the Product Identity -- WotC is not the owner of the term "d20" and therefore cannot designate it as Product Identity.
Note that if any one of the three above holds true, than claiming "d20" is an invalid claim, as PI must be ALL of (not open), (one of the things on the list), (owned by WotC)... and my contention is that not only is it not all three, it is none of the three.
I believe five requirements must be satisfied in order for something to become PI:
1.) It must not already exist (to the knowledge of the one who designates the PI) as Open Game Content (for the precise inverse of the reasons stated in the "unknowingly treading on another's PI debate").
2.) It must be one of the elements on the list in section 1e.
3.) It must be "owned" by the one who designates it as PI... this "ownership" concept comes as either the copyright owner or in the concept of improving prior art.
4.) It must be designated as PI.
5.) The designation must be clear.
I would contend that while WotC satisfied #4 and #5, they did not satisfy #1, #2, or #3.
--The Sigil
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