I've been following the trademark firestorm since it began, and I just want
to make a personal comment on the issue.
As a game producer, I am (obviously) concerned with the public perception of
my products. I try to produce the best stuff I can and keep the standards
high, in the belief that people will get to know that they can rely on the
products I sell. That makes it easier for my business to survive and
prosper.
I'm interested in releasing under the OGL since that makes it easier for me
to expand the number of people producing products for my game systems,
worlds and so on. More products means more exposure, which can mean more
sales.
But only if this expanded range of products are up to my standards of
quality and content. If someone starts putting out trash that is compatible
with my stuff, I run the risk of having the public perception of my products
damaged. And what if someone starts releasing pornographic or extremely
violent products with my system's name on it? I have to be able to at least
prevent these people from releasing their products with my system's name on
them. Which, under current trademark law, I can't easily do, if at all.
This is where I see some value in the new clause proposed for the OGL. Now I
can go to these producers, who (since they are basing their works on my OGL
Open Content) are using the OGL, and say, "You can't use my trademarks on
your work." That affords me some protection -- it allows me to screen out
who can attach their products to mine.
To address the "Drow" example that's been bounced around -- my opinion is
that if you're going to use a trademarked term without permission in the
belief that it's actually a public domain term then the onus is on you to
have some evidence that it really is public domain. To just go forward based
solely on your belief that it's public is just asking for trouble. Clause or
no clause.
I take your point, Kal, that the clause does reduce the barrier to
intervention by trademark holders. And you're correct in that it can make
things more difficult for those hoping to make use of other's trademarks --
but only in that they have to acquire permission from the trademark owner.
Once you have that permission the clause provides no advantage. And the D20
STL represents that permission.
My thoughts on the whole mess.
core
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