I believe that only a small number of people want to tie there
products to the D&D trademark. We've had that discussion before.
See the "Re: [Open_Gaming] single most valuable equity asset?"
thread on the mailing list archive.
http://www.mail-archive.com/ogf-l%40opengamingfoundation.org
(click earlier messages all the way back to the beginning).
Many of us are concerned about the implications of the new
clause with respect to our ability to produce legitimate
OGL materials. The first problem is being able to identify
items throughout the text by a trademarked name such as a
Colt revolver and Smith&Wesson ammunition. Or to make a
passing reference such as "Our hero once even defeated the
great [insert trademarked hero] in a contest of strength."
A second problem is legitimate uses of the trademark that
does not refer to the same franchise. You repeatedly dismiss
that by saying one cannot trademark a term or a phrase. And
I understand. But that does not mean a trademark owner would
not see someone else using the term in a different way as
possibly causing consumer confusion. The new clause gives
them a way to stop such usages without having to actually
demonstrate consumer confusion in a trademark case.
Example: Your Snakemen are mean and evil. You assert a
trademark on Snakemen. Never having seen your Snakemen, I
write about some cute and cuddly Snakemen. You use the new
OGL clause to make my work disappear. (Yes, I know standing
might be an issue but there are plenty of ways to obtain
standing if open gaming really is a community building on
each other's work). Even if you argue the new clause was
not meant to prevent this type of usage, the existence and
current expression of the clause certainly leaves the way
open for someone to interpret it that way. The new clause
is intended to protect trademarks. The cute and cuddly
Snakemen are damaging the mean and evil Snakemen trademark.
Therefore, the new clause should be applicable.
Note that I use "damaging" in the previous paragraph. The
cute and cuddly Snakemen are not causing market confusion.
They are damaging the mean and evil Snakemen trademark by
being so damn popular that no wants to buy or even cares
about the mean and evil Snakemen.
A third problem is companies asserting/obtaining a trademark
on something that many people feel they should be allowed to
use (and normally are allowed to use without the new clause).
Suppose someone trademarks a set of gods from some mythology
because they have a series of modules on these gods. That
effectively takes those gods away from the rest of us.
A fourth issue is the new clause only serves companies with
valuable trademarks. For some of us who do not want to use
anyone else's trademarks or assert trademarks ourselves, the
new clause in the OGL does not serve us. In fact, we would
think twice about contributing anything into open gaming,
if anyone who builds on our modules can prevent us from building
on theirs by aggressive use of trademarks.
I do not know if the final clause will exhibit all of these
problems. However, there are probably also problems that none
of us have thought of yet (and probably ones I failed to list
in this message).
I also disagree that such a clause is "almost required" for the
D20STL to have any value. The value in the D20 logo will mostly
be determined by how much and what kind of promotion WotC puts
behind it. You can only use the D20 logo under the D20STL.
If WotC pumps tons of marketing into D&D and leave consumers
with the impression that D20 is a lesser distinction then what
you say is true. But WotC can certainly promote the D20 logo and
give it significant value, if they so choose.
Regards,
--Kal
-------------
For more information, please link to www.opengamingfoundation.org
