> > 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?
Sorry. My bad. By protecting the clause you seemed (to me) to be saying
that this was what you favored.
>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.
I would never use others' trademarks to advertize, except possibly in
legitimate product comparisons. I am just philosophically opposed to
strengthening and extending a law that is already adequate for its intended
purpose.
Incidently, it has been (and still continues to be) my contention that
certain advertizing uses (if done in such a way to reduce consumer
confusion, rather than to deceive or dilute) is perfectly allowable under
the statute, and in fact is exactly what the spirit of the statute was
intended to encourage. A test case has never been provided, but I believe
(and Mr. Dancey's attorneys seem to agree with me) that such a case would be
very difficult to carry through successfully for the trademark holder.
>The only use of trademarks greatly effected by the new language is the
>casual mention of a trademark in a product.
Disagreed - based on the above opinion. Valid product comparisons are
greatly affected.
>Under current trademark law,
>such mention is permissible because it is unlikely that the trademark is
>either diluted or tarnished by the use.
I agree with this.
>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.
Utterly untrue - proven by your own and Mr. Dancey's examples. If your
statement is true, then why don't the Dark Matter Arms & Equipment Guide
include specific references to existing weapons? IMHO it *certainly* would
have added to the grittiness, realism, and interest of the product.
>And
>even if they do, there isn't much harm to the OGL publisher in removing
>the trademark.
I disagree categorically with this statement as presented. It is an OPINION
and not a fact "Harm" in a work of art or fiction is an utterly subjective
term. It's tantamount to saying that there wouldn't have been any "harm" in
forcing Da Vinci to paint the Mona Lisa frowning ..
>In this case, I consider the clause essentially
>harmless.
So (respectfully) this is your opinion. Incidentally I am glad this whole
conversation is back in the philosophical realm - where it should have been
all the time IMHO.
I apologize to the group because it was (in part) my ignorance of trademark
laws which took it out of that realm.
>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.
I would have no problem accepting this risk if it was a trademark lawsuit I
was risking. I believe I could easily negotiate an agreement that would
satisfy all parties.
I feel the risk increases exponentially if this *notice* calls into question
my right to use OGL'd material. Under the first case, all I have to do is
black out some references. With the new clause, IF I lose I might have to
cancel/recall entire product lines.
This clause CAN be used as a VERY big stick - far and above what the
trademark laws allow - the "penalties" could go way beyond reasonable.
>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.
And they would be justified - so why extend the law?
>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
You have to be aware that (I believe) the "Dark Matter" issue Ryan is
referring to was when WotC was a very small company... (pls. correct if
wrong...) The reason they did not fight it was that they (like us) did not
have the resources. It is my *belief* it was a corporate bluff - they could
have ignored it with relative impunity.
Seen from another angle - they might just have caved because they don't want
such a legal precedent on the books.
>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.
Small Company: "WotC, you are using one of my trademarks! Please stop!"
HASBRO: "So sue us! HAR! HAR! HAR!"
>I have finally
>been knocked unconcious from banging my head against stone walls.
Respectfully Alec, in my case the "stone wall" you keep banging against is
the fact that *some* of your assertions are either factually incorrect, or
are simple opinions that you have presented as fact. Not to mention that
(in many cases) you got the wrong idea about what I was trying to
communicate and (rather than respectfully responding asking me to clarify)
simply attacked my assertions as illogical.
Now I fully admit thet I started out this discussion with only a vague
notion of the Trademark law, but through this discussion, my own research,
and consultation with people in the field my knowledge has grown a great
deal - and our consensus on this group has also grown - I think to the point
where we all pretty much agree (in most cases) as to how the TM law works.
If for no other reason than this I think this has been a valuable
discussion.
We are now to the (intelligent and mature IMHO) point where what we are
doing is having a disagreement of opinions, to wit:
Alec believes the clause will not affect creativity in the industry
significantly, but will protect all companies.
Faust believes it will (at best) provide a minor and unnecessary protection
to the larger companies in the industry but will stifle creativity and (at
worst) discourage small companies from taking creative and innovative risks
that they otherwise might pursue.
This is as clear as I can make it at this point. Thank you for your
consideration.
Faust
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