>On Wed, 9 Aug 2000, Alec A. Burkhardt wrote:
>
> >The new clause does little to change current behavior. Just because the
> >clause would give trademark holders a powerful claim, there is absolutely
> >no evidence
Except past performance...
> >that any trademark holder would use that power except for
> >where they feel their trademark is being devalued. Since they could sue
> >in such a case without the clause,
It is not necessarily true that they WOULD sue anyway, though, as the point
has been brought up (and agreed with (By Mr. Dancey, I think?)) that
providing a PRECEDENT SETTING case in the "works with ..." issue is
something that most market leaders would probably be wise to avoid.
> >I don't see the clause changing actual
> >behavior in the instance you are referring to.
The new clause would give a "first round" avenue of lawsuit for just such an
agressive market leader - where they could sue without risking setting a
dangerous precedent.
If I'm understanding it correctly now, this is *exactly* what happened to
Mayfair - they were sued BECAUSE they had a contract that could be
nitpicked. Other vendors in the market who were doing EXACTLY what Mayfair
was doing were not sued, because it would have potentially provided a
dangerous precedent against TSR.
I also have to agree with Kal here, where he says:
>The new clause protects frivolous trademarks as much as it protects
>strong trademarks.
Not only that, but the new clause as proposed prevents those benign uses of
trademarks that could serve to REDUCE customer confusion as much as it
prevents such uses to intentionally confuse customers.
Faust
[KAL SAID]
>Disagree. Such a powerful claim adds to the likelihood that trademark
>holders will be successful in court. That increased chance of success
>would certainly change the behavior of some trademark holders who want
>to aggressively protect their trademarks. If a trademark holder feels
>their mark is being devalued, it does not mean it actually is. I feel
>that's an argument for courts and the trademark precedents to decide
>not for the OGL to say: doesn't matter; don't use it.
>
> >Smith&Wesson isn't likely
> >to waste money to stop someone from simply referring to their products;
>
>IIRC, Ryan mentioned firearms manufacturers were wasting money
>by having their lawyers tell WotC not to use their trademarks in
>Armed and Dangerous.
>
> >anyone who feels such a passing reference to their trademarked hero
> >infringes on their product can sue currently.
>
>And they would be more likely to sue if they had a powerful claim
>to increase the chance of successful litigation. You seem to hold
>the opinion that the new clause is benign because companies can
>already sue. I strongly disagree because the new clause provides
>a powerful claim and increases the likelihood that a trademark holder
>will take legal action. Without the new clause, trademark holders
>will pick battles on more solid ground instead of a shaky passing
>reference.
>
>[liberal snipping for brevity from here on, if I missed a point
>apologies and feel free to readdress]
>
> >Here's the biggest issue I have with Kal's examples - he keeps using what
> >is a highly questionable term for a valid trademark "Snakemen". Even
> >assuming one could be granted a trademark of such a term, if you read the
> >U.S. Patent & Trademark Offices information, you'll see that being
>awarded
> >a trademark does not guarantee that your trademark will be valid upon all
> >atttempts to enforce it. Using such a generic term as "Snakemen" is one
> >of those instances where it is quite possible that even a registered
> >trademark will not be upheld by the courts.
>
>A main goal of the new clause is to bypass the trademark laws.
>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.
>
> >And if you change Kal's
> >trademark to something more specific than "Snakemen" such as
>"Slithr'sss",
> >the example falls apart as it's 1)highly unlikely that independent people
> >will create such conflicting trademarks & 2)if they do this is exactly
> >what trademark law is suppose to protect, meaning that the new clause
> >doesn't change behavior.
>
>"Snakemen" and "Slithr'sss" may be on different ends of a scale.
>There are many cases in the middle and I do not want to argue
>on how likely it is 1) to obtain a trademark on a particular case
>or 2) for two people independently to realize such a situation.
>Note that in my example only the mean and evil Snakemen wants to
>be trademarked. Because they see the cute and cuddly Snakemen
>as a problem, they exercise the new OGL clause when they may
>have little or no chance in a trademark infringement case.
>
> >> 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
>
> >> 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.
>
>Again OGL authors would have the onus placed on them to have
>a court revoke such a trademark before they can use it freely.
>
>See http://www.cs.ualberta.ca/~wade/HyperDnd/TSR/drow.html for
>more details on this example.
>
>I also do not think WotC will repeat the TSR history. But I
>do not doubt someone else will come along and do something
>similar, especially with the new clause as added ammunition.
>
> >This one I just don't understand the logic of at all. The proposed
>clause
> >is bad because it protects something that is valuable. It does nothing
>
>The proposed clause is bad because it does not serve the people
>who do not want additional trademark protections in open gaming.
>
> >for those who have no interest in trademarks. Yet it could drive away
> >people who want to use other people's trademarks. The people in your
>
>It could drive away the people who want to contribute something
>that they would want to continue contributing to regardless of
>who starts asserting trademarks. Example: You contribute something
>"foo" and I build on "foo" adding something that's a good fit "bar".
>But I trademark "bar" and prevent you from adding on to "foobar".
>You are stuck with just "foo" so you begin to think contributing
>to the OGL wasn't so wise after all and tell your friends you got
>ripped off by the OGL. I wish I could give you a more concrete
>example but I cannot. I can only illustrate the reasoning since
>I don't have any great gaming ideas to toss around the mailing list.
>
> >all aspects of the OGL are going to relevant to everyone using the OGL;
> >that's true with or without the proposed clause. The people in your
> >second sentence are not negatively effected by the proposal. And you
> >appear to have missed Ryan's message where he explained that the new
> >clause does not change the fact that anyone who uses a trademark in open
> >content is still opening up the use of that trademark.
>
>I didn't missed that. Continuing the hypothetical example: "bar" was
>never open content but "foobar" couldn't exist without you contributing
>"foo." Before everyone jumps back on their moral high horse and say
>"bar" is closed leave it alone. The point I am making is you having
>contributed "foo" now regret doing that and is driven away. When
>without the new clause, you would have been perfectly satisfied with
>whatever the current laws allow you to use of "foobar."
>
>Now even if one has the opinion that the current laws and the
>new clause OGL allow the same amount of usage (ie. zero), you
>are being driven away by the new powerful clause in the OGL not
>by current laws. It would be easy and natural to choose not to
>participate in the OGL anymore.
>
> >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.
>
>
>
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