I know I said I wasn't going to say anymore on this, but Faust asks a
direct question:
On Fri, 11 Aug 2000, Faustus von Goethe wrote:
> I am asking ONE QUESTION directed to Alec:
>
> Alec, why do you feel the trademark laws need to be strengthened
> by the OGL to favor the trademark holder?
Since I have never stated the above, why should I answer such a question?
The main point of the proposed clause is to stop advertising use of
trademarks. I know you, Faust, are opposed to this, but the majority who
have discussed the issue (even Kal) have not been concerned about this
action by WotC. Since writing specific legislation (a contract is private
legislation between the parties involved) is more apt to create numerous
holes, the proposal is broad in covering the use of all trademarks. Some
people became concerned that this would greatly effect things other than
advertising. I've been pointing out how every single example that has been
presented has essentially been incorrect about this fact.
The only use of trademarks greatly effected by the new language is the
casual mention of a trademark in a product. Under current trademark law,
such mention is permissible because it is unlikely that the trademark is
either diluted or tarnished by the use. Howerver, even though the clause
would say you can't use trademarks this way, I've pointed out that there
really isn't much danger of trademark holders caring about this use. And
even if they do, there isn't much harm to the OGL publisher in removing
the trademark. In this case, I consider the clause essentially
harmless. If you want to use trademarks in this way, I'd say just go
ahead and if you are contacted by the trademark hold comply with there
request to remove the trademark. Or if you're really concerned simply use
generic terms and you have no problems.
If the use of a trademark is crucial to your product, it's more likely
than not that if the trademark holder doesn't like the way their trademark
is used they would be willing to take you to court; under current
trademark law. This is especially the case given the discrepancy likely
to exist between the trademark holder and OGL author in terms of
money. Because it is easy for a trademark holder to bring a suit when
they feel their reputation is being damaged, and the fact that few OGL
publishers would be able to survive to trial to defend themselves against
the claims, I don't see the clause adding much here. Big companies with
lots of money currently do this all the time - threaten legal action to
get what they want. If you don't believe me, find Ryan's post where he
explains why the Dark Matter Arms & Equipment Guide doesn't include
specific references to existing weapons. Like most on this list, I think
it likely that WotC would have won such a case in court. Given that
WotC/Hasbro wasn't willing to fight the issue, why does anyone think the
small OGL publisher is going to do better in this situation? And since
the big companies are already willing to bring suit, why does anyone think
they need the proposal to do so?
One group of trademark holders is directly benefitted by the new clause,
the small publishers, such as OGL authors. They've essentially been put
on the same playing field as the big guys. I recognize that many people
don't like the big guys, but there isn't any language that can be added to
the OGL which will take away their ability to use trademark law as
described above. So instead, the OGL adds language which gives the little
guy essentially the same ability. I have never said that such an ability
is good, but if it's going to exist (and the OGL can't do anything about
that) I'd much rather all trademark holders have it and not just the big
companies with lots of money to spend on lawsuits.
Other examples (such as Kal's Drow) have really been about copyrights and
the proposal is irrelevant in such cases. And to answer Kal's earlier
question:
"Do you really believe that TSR deserves to win such a case
if Drow is really a public domain entity that the OGL author
could not locate solid evidence to support? Even if the
evidence comes out a year later?"
Anyone who believes in the rule of law in even the smallest degree must
believe that TSR deserves to win the case you presented. Without being
able to show that Drow is really a public domain entity, you are forced to
concede that Drow was created by TSR. If this was not the way law
functioned, all anyone would have to do is say "I think that concept is
public domain, therefore I can use it". If later, someone can show that
Drow should have been considered public domain all along, that's when TSR
deserves to lose their rights over Drow. And this is still a copyright
issue not a trademark issue, since without being able to show that Drow is
a public domain term meaning dark elves, you certainly can't use the term
Drow to refer to your Dark Elves.
I apologize to those who've grown sick of this discussion. I have finally
been knocked unconcious from banging my head against stone walls. I will
post no more on the subject regardless of what tactics Kal or Faust
attempt to use to goad me into response.
later,
alec
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