> Ryan S. Dancey
>
> The OGL requries that you provide a worldwide, nonexclusive, royalty free
> license for any trademark you contribute to Open Game Content. Thus, you
> would have permission to use any trademarks that got interspersed within
> that content.
I wasn't particularly happy about the inclusion of this language in the OGL,
apparently enough that I chose to forget about it...
> The proposed addition covers trademarks >not< included in the Open Game
> Content; because if they're in the Open Game Content, by
> definition you have
> permission to use them.
I concede your point, but it raises another. If I receive permission to use
a trademark in a work, the company that grants such permission may
inadvertently grant 'worldwide, nonexclusive, royalty free' rights to that
mark through the OGL. If I don't seek permission and I use a mark in Open
Content, then obviously there is no chance that I have the authority to
compromise the mark (and I've violated the OGL). However, if I seek and am
granted permission, then the mark may fall into 'Open Content', which much
closer to 'public domain' (as that term is used in Trademark law) than most
IP owners would be happy about. Clearly this is not what you intended.
The burden is always on the company owning the mark to determine the legal
ramifications of granting permission to use a mark and to defend that mark,
but in this case the two clauses combine to make it VERY easy for a mark to
be made public through carelessness. I realize that it doesn't have to
happen this way - that a company can grant permission to use the mark while
prohibiting it from being used in Open Content, but they must recognize the
danger of the OGL in order to take that step. If this were big business
then I would simply assume that the IP owners would get competent
representation on the issue, but this is essentially a cottage industry with
a few big players, and so I have strong doubts as to whether or not the IP
owner would take all the steps necessary to secure their property. A few
bad experiences would certainly sour the minor players on using the OGL. Or
at least, using Trademarks on the OGL.
Again, I really like this idea for d20, but I think it is too sweeping for
OGL as it was proposed. Perhaps if language on separating mechanics from
story were available I would feel differently, but right now a Trademark is
the only legal entity a company can use to simultaneously promote and
protect their IP. This language pretty much tells authors not to use
trademarks in works covered (either partially or fully) by the OGL.
I am also of the opinion that hybrid open/closed works are too complicated
for laymen to create (and protect), so I was hoping that Trademarks would be
an easy way to have Open Content and still have some IP that was protected.
Perhaps I'm being reactionary, but I don't think so.
-Brad
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