On Thu, 10 Aug 2000, Kal Lin wrote:
> On Wed, 9 Aug 2000, Alec A. Burkhardt wrote:
>
> > Which is why people under the OGL who are interested in developing a
> > product line should be in support of the proposed language. WotC really
> > doesn't need the language to protect them against abuses by OGL companies;
>
> This is your opinion. To me, it does not jive with the message
> I got from Ryan's essay. WotC wants the new clause to protect
> their trademarks. Others will also receive the same benefits.
This really isn't in disagreement with what I've said. Yes, WotC wants
the new clause, but even you've agreed that the big companies can smash
the small guys. Since the new language doesn't permit enterely new
classes of lawsuits with regard to trademark law, the clause helps WotC
only marginally as compared to how it could help smaller companies. Of
course, if you want to keep making arguments based on completely invalid
legal reasoning, you're going to disagree with me here. If you aren't
willing to accept the statements about the law from the people on this
list who have some training (and since we all seem to disagree with you,
I understand your unwillingness), you should at least try and learn the
law from somewhere else. To continue to post legal arguments based on
complete ignorance of how the law works is a waste of the time and
certainly doesn't help your argument.
> You think the little guys are going to initiate a lawsuit
> and justify the new clause cause it reduces the costs of
> legal action? Whether the suit costs $20K or $20M, the
> little guy will only get some scraps from the other little
> guy they just sued out of business.
If the little guy holds a trademark they want to maintain, they have no
choice but to initiate a lawsuit. The point of such a lawsuit is not to
get money from the person "borrowing" the trademark but to stop the
use. The clause makes this more likely than under current trademark law
since it makes it clear that use of a trademark (and remember if the
trademark can't be validly used, it isn't a trademark) isn't allowed under
the OGL, so the small guy doesn't need to get involved in the difficult
task of arguing dilution/tarnishment. For anyone interested in developing
a line of OGL products, especially those interested in creating entirely
new campaign worlds, this is a very good thing.
> > You & Kal keep using the "compatible with
> > ..." mantra as if *only* D&D and maybe D20 are going to be tacked on at
>
> I think I have made it pretty clear, it matters little to me
> whether someone puts compatible with D&D or D20 on their boxes.
> I want to write a module titled "Drow Adventures in the Swamp"
> (figuratively speaking) without having to worry about some new
> TSR taking advantage of reduced costs of court action.
OK, it was my impression that you & Faust were making completely separate
arguments, but he kept making tying both of your arguments together as if
you were on the same side of an issue. If your worry is stated above, I
maintain that the clause does little to change current law. Primarily
what you are worried about is a copyright lawsuit not a trademark one.
> > > Something like a test case on a substantive trademark issue.
> > >
> > > The main point that I think Kal is trying (rather bravely) to make is that
> > > the clause in the OGL will provide another layer of lawsuits before the
> > > GIANT gets close to a substantive trademark issue - something they might not
> > > want defined.
> >
> > Nothing Kal has said indicates anything of the sort to me. If that's what
> > he's been attempt to say, he's been unsuccessful. Certainly none of his
> > examples revolve around that issue in any meaningful way.
>
> That's because I do not hold this theory. That's bordering
> conspiracy theory in my opinion. If you and others think it
> has merit then feel free to explore.
That's what I thought. It was Faust who was claiming this was the point
of your were making, not I.
> I just think it is more likely someone like TSR forgets where they got
> something like Drow elf from and convince themselves they created it.
> Then woe be to anyone who writes about grandma's Drow elf without
> actually obtaining proof of pre-TSR Drow elf first. How's that
> different than without the new clause? TSR would have to go through
> the full expense of showing dilution, tarnishment or market confusion
> in court instead of engaging in rapid fire reduced costs litigation.
Under both the new clause and current law, if you can show that a
trademark isn't valid you can't be stop from using the words you want to
use. And if you are using the Drow as described & detailed by TSR/WotC,
the issues of dilution & market confusion are likely to be in WotC's favor
in a trademark case. Of course, WotC would only be attaching the
trademark suit on top of a strong copyright suit.
> Even if I grant you there will be no bogus cases won, I think
> there are plenty of cases where there are reasonable people with
> a reasonable position on either side. One side is going to win
> and one side is going to lose (maybe both sides lose but both
> sides rarely win or they wouldn't have to go to court). Do you
> think it is right to arbitrarily strengthen the trademark owners
> side in every case? Why is it true in our little world tarnishment
> and dilution are no longer issues that should be addressed?
Kal, since most of the examples you provide where you claim someone is
using a trademark to stop someones publishing OGL material are really
copyright issues, we are going to disagree on the likelihood of such
cases. I admit that the proposed clause allows companies, like Ford,
Smith&Wesson, Colt, etc. to stop the use of their trademarks if they wish
without concern over proving dilution/tarnishment. But if you simply are
using their trademark to identify their products, most companies aren't
likely to care. Those companies that do care, often at least threaten
lawsuits under the existing law (see Ryan's comments about the Dark Matter
Arms & Equipment guide). If they're willing to threaten WotC, I'm willing
to bet they'd be willing go to court against a small publisher, even if
they wouldn't have followed through if WotC hadn't decided to remove all
real world references in the DM A&EG. Sure, they'd have to prove dilution
or tarnishment, but you've already said that the small OGL publishers
aren't likely to ever last to the courtroom. And since the use of
trademarks in such situation is not really necessary for a product (I
don't accept the argument that using generic names greatly reduces the
value of a product - if they want to use trademarked names for guns, cars,
etc., the purchasers of the product can add them easily enough
themselves), no it doesn't bother me that dilution/tarnishment is not an
issue under the proposed clause.
The one place the new clause does probably increase the likelihood of a
lawsuit is with regard to advertising. That would include your above
example of "Drow Adventures in the Swamp", since the title is also an
advertising tool. In this instance, under both current law & proposed
clause, you can argue against the validity of the trademark on Drow; the
clause doesn't effect this at all. And this would have to be your primary
argument under current law or the proposed clause. If you don't make this
argument but instead claim that you aren't diluting or tarnishing the
trademark because you are using the Drow exactly as described by WotC,
you've essentially admitted to a copyright violation. If you can provide
an example where you are using a trademark without also attempting to
trade on the copyrighted property of the trademark holder, perhaps this
discussion could go somewhere. As it is, all I see is you making invalid
legal arguments and confusing the issues of trademarks & copyrights.
later,
alec
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