>Ryan has already pointed out, the use of trademarks within a product is
>NOT something permitted by trademark law.
Mr. Dancey is simply incorrect, insofar as federal law is concerned.
>From the Harvard University legal information site at
http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm#7
Under federal law a company can bring action on the basis of trademarks for
two reasons; INFRINGEMENT, or DILUTION:
INFRINGEMENT: If a party owns the rights to a particular trademark, that
party can sue subsequent parties for trademark infringement. 15 U.S.C. §§
1114, 1125. The standard is "likelihood of confusion." To be more specific,
the use of a trademark in connection with the sale of a good constitutes
infringement if it is likely to cause consumer confusion as to the source of
those goods or as to the sponsorship or approval of such goods.
DILUTION: In addition to bringing an action for infringement, owners of
trademarks can also bring an action for trademark dilution against any use
of that mark that dilutes the distinctive quality of that mark, either
through "blurring" or "tarnishment" of that mark:
Blurring occurs when the power of the mark is weakened through its
identification with dissimilar goods. For example, Kodak brand
bicycles or Xerox brand cigarettes.
Tarnishment occurs when the mark is cast in an unflattering light,
typically through its association with inferior or unseemly
products or services. So, for example, in a recent case, ToysRUs
successfully brought a tarnishment claim against adultsrus.com, a
pornographic web-site.
None of this prohibits referring to trademarks in a published work.
Further, the use that Mr. Dancey refers to, eg, a small label saying:
This product is designed to work with Dungeons and Dragons. The
makers of this product are not associated with The makers of
Dungeons and Dragons and have used this trademark without
permission.
is ... simply ... not ... against ... the ... statute.
>I'm just not certain where people are having so much difficulty with this
>proposal.
I'm personally (and I am not alone it appears) going to have philosophical
concerns with *any* provision in the OGL that seeks to extend restictions
into areas of the law where restrictions currently do not exist -
particularly when that restriction seems to benefit one player in the market
almost exclusively.
>Where is it, exactly that people intend on using trademarks other than
>for advertising purposes?
What does it matter to you? If the use listed above is not illegal, has
never been illegal, and (god willing) we will never have a system that is so
restictively anal and paranoid as to make such a minor and unharmful use
against the law.
Faust
See the OGF FAQ (soon to be update with more specific trademark info) at:
http://www.earth1066.com/D20FAQ.htm
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