On Wed, 9 Aug 2000, Kal Lin wrote:
[I've snipped a lot]
> A main goal of the new clause is to bypass the trademark laws.
According to you, that is a main goal. I disagree.
> If someone were to obtain a trademark on "Snakemen" (or even to
> simply assert the claim since we haven't got a clear answer to
> that) then it doesn't matter if the trademark office and courts
> are willing to support it when challenged. It's a trademark by
> definition (granted not a strong one if challenged). The new
> clause protects frivolous trademarks as much as it protects
> strong trademarks. OGL authors would be barred from using
> these frivolous trademarks unless they are willing to go to
> court and have that frivolous trademark revoked. The onus falls
> on the OGL authors to get that trademark revoked, when previously
> the onus falls on trademark owners to convince the courts
> enforcement is appropriate.
This is not accurate. Just because someone claims something is a
trademark does not mean it is a valid trademark under the law. In fact,
just because someone registers a trademark with a governmental office does
not guarantee a trademark is a legally valid trademark either. The
proposed language does not protect such "frivolous trademarks" any more
than the current law does, since they are not legally trademarks. The
onus does not fall on the OGL author to get the trademark revoked, the
onus still falls on the individual claiming the trademark to prove they
possess a legal trademark.
> >> 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
>
> some existing, possibly obscure, mythology
CAN'T BE DONE!!!!!!! Where do you get the idea that anyone can go out and
trademark something like this? They can trademark the a name from a
mythology in reference to a product, but no one can trademark such a
public domain entity.
> >> because they have a series of modules on these gods. That
> >> effectively takes those gods away from the rest of us.
> >
> >Could you provide a better example? The one you provides is invalid under
>
> A real example is TSR's claim that "Drow were created by TSR."
> Under the new clause, they could assert a trademark and prevent
> anyone from using Drow in open gaming. Well before D&D was a
> product, Drow was listed in Webster's unabridged 1970 as: A tiny
> elf which lived in caves and forged magic metal work. Even if
> I grant that TSR independently created Drow, the new OGL clause
> prevents anyone from using the pre-existing term Drow because
> they refer to the same thing.
No, the term does not do that since if WotC attempted to sue you for using
the term Drow to as defined in Webster's dictionary you would have the
evidence to demonstrate how & why you are not using their trademark and
they would lose the case. Since you know (and actually WotC does as
well) that this is the case there is no requirement that you do anything
prior to publishing your use of the word Drow.
> Again OGL authors would have the onus placed on them to have
> a court revoke such a trademark before they can use it freely.
Completely and factually incorrect. The new language still places all the
onus on the trademark holder to bring suits to stop the use of their
trademarks. It does enormously strengthen the trademark holders position,
but that's only true if they hold a valid trademark. If you think someone
doesn't have a right to trademark a terms, like say Snakemen because it is
too generic or Thor because he is a Norse god, use the term and then
defend yourself *if* someone is silly enough to attempt to claim you are
using their trademark. The nice thing about this is 1) you're likely to
win, 2) you're likely to be able to force them to pay your costs &
3) you're even likely to be able to win punitive damages for their
bringing such a suit against you.
> See http://www.cs.ualberta.ca/~wade/HyperDnd/TSR/drow.html for
> more details on this example.
First, the site isn't discussing trademarks but copyrights - which
essentially shows that the site itself (a collection of either e-mail or
newsgroup messages it looks like) does not quite understand what it is
discussing. In any case, the site does provide the exact type of evidence
someone could use to defend themselves if someone were to bring a suit of
this nature. If it can be shown that the word/phrase in question was
being used in this manner by others and in general use before the
trademark holder claims they created the trademark, that trademark is not
going to be valid.
> The proposed clause is bad because it does not serve the people
> who do not want additional trademark protections in open gaming.
And why do this people get special consideration? As oppposed to those
people who intend to create campaign worlds under the OGL and wish to
trademark their creations? I'm sorry, but you've essentially put people I
consider the least deserve of special consideration at the apex of
consideration and said that people who create IP and wish to protect their
IP deserve less consideration. If that's your argument, you and I'll will
NEVER be in agreement on this issue.
Your foo-bar example makes no sense to me, as trademarks are not
properties in the way you are asserting them here. This discussion sounds
more like the copyright discussion of open/closed content. If I make my
trademark open, and you use my trademark, you must also use it in an open
fashion - that's required by the OGL. You can't take my trademark into
the closed content of your work and in fact attempting to do so may result
in your opening your closed content. But this is all matters of
copyright/OGL language and not trademarks.
> >No, under the reading you have given to trademark law and the proposed
> >language, I can use the D20 logo under the OGL, without agreeing to the
> >D20STL. All I have to do is say this product is compatible with D20.
>
> Hmmm. There must be a misunderstanding here. I believe you can say
> you are compatible with D20 but not use the logo. Usage of the logo
> requires the D20STL. If you are referring to my statement in response
> to Ryan's message about Ford's logo, I was working on the assumption
> that Ryan is right about someone getting to use Ford's logo and
> commented that there are probably Chevy floor mats too.
>
> Are you also possibly implying that under a different reading to the
> trademark law and the proposed language that such a point is valid?
>
> Whether someone says "compatible with D&D" or "compatible with D20,"
> I am satisfied to let the current law rule. If someone wants to
> use the official D20 logo then they should have to enter into the
> D20STL. If someone wants to use the official D&D logo (the red
> fancy font with sword through the & symbol between the two words?)
> then they should have to enter into an agreement with WotC. But I
> disagree we should extend trademark protection to the level proposed
> by the new clause.
The problem here is that logos are just trademarks like the words. They
don't have separate law protecting them. So you cannot make the argument
you are making above that it is legally ok to use 1 type of trademark and
not legally ok to use the other. I understand the position of some that
they should be able to say "compatible with Dungeons & Dragons" using some
anonymous typeface as opposed to using the typeface WotC uses. The law
does not distinguish trademarks in that manner explicitly. As far as I
know it's not clear if the law would distinguish in that manner. A basic
reading of law would indicate that no court would except such a
distinction. Microsoft enforces the use of their compatible logo through
market factors not through trademark law. WotC does not have that
advantage and so would need to rely on trademark law. If WotC didn't
fight the use of just the words, they'd likely have problems fighting the
use of the logo.
I have to go give a test (and then grade them) so I will (luckily) step
out of this "discussion" for a time. However, I stand by the statements
that the proposed clause does very little to change actual practice. None
of the example provided by anyone to date have proven legally sound in my
opinion.
later,
alec
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