There has been a lot of discussion about the specific issue of whether or
not a notice such as:
"This product is compatible with Dungeons & Dragons(R)."
Is a legal (and ethical) thing to put on the cover of a roleplaying game
(with or without the "This trademark is not used with permission" clause.)
These are my reasons for believing that it is neither. I have no real idea
of whether this opinion would hold any weight in court. The case citations
I have read, and my conversations with our legal counsel lead me to believe
that it would be a very challenging case to pursue. Nevertheless, it is my
opinion, and in the interests of disclosure, I think you all have a right to
know what that opinion is.
The trademark law exists for one specific reason: To allow a company to
make a promise to a customer. The idea is that if a company asserts and
registers a trademark, the company has the ability to use that mark as
shorthand for "We make this product, you know us, you know our product
quality, you recognize the added value of our craftsmanship and customer
service as opposed to a generic good of this type. By using this mark, we
promise you that we will do our best to live up to your expectations, and
you can expect us to stand behind this product to the best of our abilities.
We want you to look at a shelf full of similar products, and recognize our
products from all the clutter when you get ready to make a purchase
decision."
For 99% of the goods in the world, the application of the trademark laws are
pretty straightforward for most types of commercial goods. You cannot, for
example, produce a car and call it a "Ford"; no matter how much you disclaim
ownership or permission of that mark.
In our little corner of the commercial universe, we have an odd situation.
Instead of selling a tangible good designed to be used alone and without
further support, we are actually selling you the first of many hoped for
purchases of our intellectual property bound up in the form of a book. The
way we make money is by inducing consumers to buy more of those books over
time, and by convincing new consumers to buy the first books and thus expand
the total number of people using our IP.
You can (by court precedent) make a floor mat, put the Ford logo on it, and
then sell that item with the proper disclaimers of trademark ownership and a
clear indication that you are not Ford and that you made and are responsible
for the quality of the floormat in question. Ford's trademark is for "cars"
and "floormats" are not cars. Therefore, there is an assumption that even
though the mat has Ford's trademark on it, you will know and understand that
Ford didn't make it and can't be held responsible if the product quality
sucks. While I personally disagree vehemenently with this theory (as a
brand manager, I know that the brand equity extends to every use of the
brand identifiers, regardless of whether that imagery is on a car or a
floormat) I am forced to admit that a court did so rule, and so therefore
the law does allow this type of use.
My argument is that by publishing a supplement or an adventure "Compatible
with Dungeons & Dragons" or "Suitable for use with Dungeons & Dragons" or
whatever the construction is, you are in fact selling something in the same
category as the trademark. You are selling a game product. If you were
selling dice, or miniature figures, or playmats, or writing utensils, I
would have to concede that there is little chance your use of the mark with
the proper disclaimers would confuse anyone.
But in the case of game products, I feel that the exact opposite is true. I
think there is a very reasonable chance that someone will buy a product
carrying such a notice and believe that >we< stand behind it, either as a
licensor, or in some form of review capacity. In other words, I think it is
reasonable that there will be consumers who will see such a product, buy it
under a mistaken idea of what it is, and be disappointed when it does not
live up to their expectations, and will thus dilute the value of our
trademark and create confusion in the minds of consumers.
I think that the analogy with Microsoft Windows is flawed. Most consumers
never buy Windows and have no commercial relationship with the "Windows"
trademark. Furthermore, I think it is reasonably understood by the market
that most people who produce software that is "Windows compatible" aren't
Microsoft, and Microsoft isn't standing behind those products in any way. I
also think that Microsoft believes (rightfully so, in my opinion) that
having the largest and most diverse collection of software available creates
and protects Windows as a de facto standard, and isn't about to tackle the
problem of asking all those vendors to get Microsoft's permission before
using their mark to indicate compatibility.
If the gaming business evolved the kind of trademark usage that the software
business has (where in a small box somewhere on the product, without a logo
and without any obvious attempt to represent itself as a licensed good, a
product indicated that it was "Dungeons & Dragons Compatible"), I think we
might see some of the same benefits that Microsoft sees, and I would not
fear the dilution and confusion as much as I do. But what I expect to see
(and have seen in the past) is an attempt by some producers to confuse the
public by making that compatibility notice one of the most prominent
features on the cover of the product - clearly intending to use that notice
as a way to connect to the value of our brand and tap our brand equity.
I think that's wrong, and unethical - even if it might be technically legal.
I think it is the publication equivalent of lying to people, and falsely
misrepresenting oneself.
In my meeting with legal last week, they raised a series of questions about
Open Gaming; to which I would respond "does the Open Gaming License make
that fear more, or less likely". In almost every case, we all agreed that
the license actually >reduced< the likelihood of someone doing something we
find commercially damaging to our business. However, in one specific case,
I think we have a consensus that the risk factor goes up, rather than down.
Because the OGL allows an unprecedented use of the core materials of D&D
that will extend far, far beyond the mere expression of the game rules, the
value of someone claiming "D&D compatibility" skyrockets - because for the
first time, the product will legitimately be reasonably compatible. So we
believe that the number of people who might be tempted to abuse the
trademark law will go up, rather than down.
We also feel that problem will extend to anyone else who is successful with
Open Gaming. Each and every person who is trying to see if this new
business model will work is investing in the creation of a brand. Look at
how many companies have been formed (at least by agreement of the parties,
if not formally with incorporation yet) to work with OGL/D20 material.
There is a real danger in my opinion that the ability to make money in this
field will be compromised by the liberal exploitation of other people's
trademarks - and if nobody is making any money with Open Games, then the
concept will be nothing more than an intellectual curiosity and there will
never be a market force pushing consumers to embrace the concept and demand
Open Games from other publishers. And if that market force does not
develop, the entire experiment will be a failure in my eyes.
Legal is working on some language for the OGL to address these concerns.
The language must go in the OGL, because that is the primary governing
agreement that will control the use of the copyright material we are
releasing. Putting it in the D20STL is useless - someone who wants to poach
the trademark doesn't need the D20STL and won't use it anyway. Legal has
not shown me a first draft yet of what they propose. I am going to LA
tomorrow and happen to be flying with Brian Lewis; we may have time to talk
about the issue in more detail. In any event, the language that Brian is
attempting to craft is going to be focused on this narrow problem, and he is
an excellent lawyer and will be careful to avoid something that is overly
broad.
I hope this essay goes some distance towards addressing the confusion about
this issue and clarifying my position.
Thanks for listening.
Ryan
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Information on Open Gaming: www.opengamingfoundation.org
Information on RPGA: www.wizards.com/rpga
D&D 3rd Edition is coming!: www.3rdedition.com
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For more information, please link to www.opengamingfoundation.org
