> Justin Bacon
>
> Which part of the OGL specifies that the use of any trademark is
> a breach? If I
> have a character drinking a Pepsi(TM), have I breached the OGL?
Not unless your character is OGC and you indicate that he is
'Pepsi-compatible' :-).
Section 7 is specifically about two things - other people's PI and
trademarks. Product Identity means the PI of the work you are deriving
from. In the case of the SRD, there is none, so you'd have to be deriving
from some other work in order for this to come up. Trademarks which are not
PI are those which come from somewhere other than a derived work. In the
case of 'Pepsi', assuming PepsiCo has released no OGC you're fine.
This is an important point: Even if Pepsi HAD released OGC and named their
trademark PI, you are only bound to treat it as PI if you derived from their
OGL work. Nobody says you have to do so. You can use their Trademarks
under Fair Use in your OGL work (not as OGC, because you don't have the
right to make their mark OGC, so it must be PI in your work) so long as you
abide by the OTHER stipulation of Section 7 - not to indicate compatibility
or co-adaptability.
Unfortunately, compatibility or co-adaptability has some pretty sweeping
implications. Does drinking indicate that Pepsi is compatible with your
character? Does using a Colt pistol with your OGC 'Gyrojet' ammunition
indicate compatibility? I suspect that a clever attorney could make just
about anything mean compatibility if it involves a trademark being used in
the context of an RPG (at least for the purposes of a Cease & Desist - it
might not stand up in court, but who wants to go to court?)
In any case, using a third party trademark that violates compatibility or
co-adaptability is NOT, by itself, grounds for the owner of that mark to
sue. They have no grounds to do so as long as your usage was covered under
Fair Use (a standard that is much less strict than 'compatibility or
co-adaptability'). What DOES happen is that the owner of material you have
derived from has grounds to sue for breach of contract. Usually this means
Wizards, but it might be anyone listed in your COPYRIGHT statement (section
15). You have 30 days to cure the breach once you are notified, so in
practice this shouldn't ever go to court.
It might well be that if you derive a work from the SRD (only) and then use
the marks of one of Wizards' competitors in a manner which is unauthorized
by the OGL, AND IT DOESN'T HURT Wizards, that they would have no interest in
pursuing a breach of contract suit with your work. That has interesting
implications for 'compatibility guides', doesn't it? If you want to go this
route be sure you check with your lawyer first, I might be smoking crack.
-Brad
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