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.
> they sort of have those HASBRO lawyers available. WotC can afford to take
> (or just threaten to take) the small guys to court to defend what might be
> somewhat uncertain prohibitions on the use of trademarks. The little guys
> (that's most of the people on this list who intend to publish under OGL I
> assume) can't; especially given the uncertainty of a case. The proposed
> language removes that uncertainty so that if some other OGL publisher
> attempts to use my, yours or someone else's trademarked product line, the
> costs of court action are reduced due to the strengthening of the
> trademark holders position.
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.
> 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.
> > 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. 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.
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?
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