On Tue, 1 Aug 2000, Brad Thompson wrote:
> > Alec A. Burkhardt
> >
> > Adding the clause to the OGL does not prevent people from using trademarks
> > without permission anymore than the current trademark law does. Why?
> > Because even under the OGL, the only one able to bring suit for trademark
> > infringement would be the trademark holder. They could do this with or
> > without the proposed clause. The clause simply gives them a stronger case
> > when they get to court.
>
> No, this clause also allows any copyright holder of material from which the
> document may have been derived to sue for breach of the OGL in the event a
> trademark is used improperly.
Actually, from what Ryan has said, I don't think that would be the
case. Just because you are in violation of the OGL will not be sufficient
for any other user to sue you over your use of another third parties
trademark. How are other OGL publishers injured by the use of a third
party trademark? U.S. courts require litigants to actually be effected by
the case they are involved in. What type of claim do you see other OGL
publishers attempting to bring against someone who uses a third party
trademark without permission? No damage is done to publishers of the
other OGL material by the subsequent OGL publisher improperly using
trademarks.
> Further, if they can bring a suit with or without the clause, then the
> clause does not do its job of reducing the legal entanglements
> associated with the OGL.
Since the original thrust of the clause appeared to be preventing the
advertising use of outside trademarks without permission, something that
is permissible under current trademark law, the point of the clause seemed
to be to prevent that use. There is nothing that can be written into the
OGL that can remove the legal entanglements that can result from using
another parties trademark without their permission if that third party
believes your use damages their trademark. The clause does reduce legal
entanglements as it makes it clear to OGL publishers that the use of
another's trademark may have legal consequences - something this list has
made apparent that many people aren't aware of.
alec
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