Unless you're just making this arguement to make sure people understand the proper use of terminology, I think you're flying way off the handle and haven't been on the web to look at gaming sites in a long time.
Fair use as I used it here has a number of real world cases.
Ever go to a White-Wolf LARP page? Almost every one of them has a little white-wolf logo on them or World of Darkness logo on them with a little link that goes back to White-wolf.com... A number of them even have little things under them saying things like "Please don't sue us white wolf." Have they yet? There are people on here that would know that better than me but to the best of my knowledge no. And why not? Because the more people who join these games, the more of the little LARP books White wolf sells.
3E Conversion sites. Taken a look at this? People have been sharing information on how to update the old campaigns (Spelljammer, Dark Sun, and Planescape all come to mind). These aren't official, these aren't D20, they aren't even OGL. So why haven't the attack lawyers gone there yet? If people liked the old settings and now have a way of using them with the 3rd Edition rules then they're more likely to want to upgrade to 3rd edition rules and buy the core rulebooks. Makes all sorts of business sense to me.
In a non-gaming vent, Pepsi and Coke, personally I don't drink either so no favoritism. But have you ever noticed that Many Pepsi commercials announce that they are better than Coke? On the other hand, I've not once seen a Coke ad that references Pepsi. So why would Coke let Pepsi get awa with it? I've heard tales of money/liscencing exchanges but ignoring that. When it comes down to it, by Pepsi having to say that it's better than Coke it's already acknowledged that its #2 and so it's free advertizing for Coke strange as it may seem. Brings in the money.
So while there might be no Legal setup there, companies are sure as hell going to look the other way if in some small way you're making them money.
|-----Original Message-----
|From: Alec A. Burkhardt [mailto:[EMAIL PROTECTED]]
|Sent: Friday, April 20, 2001 11:35 AM
|To: '[EMAIL PROTECTED]'
|Subject: RE: [Ogf-l] Website needs a review and comments- Ryan, anyone?
|
|
|On Fri, 20 Apr 2001, William Olander wrote:
|
|> So if you're doing fair use work (A fan site) under
|Trademark then you're
|
|One more time: THERE IS NO FAIR USE CONCEPT WITH REGARD TO TRADEMARKS
|
|"Fair Use" is a copyright exception, allowing you to use copyrighted
|material in small amounts and for certain purposes. Trademarks can be
|used as long as you don't infringe on or dilute the trademark holder's
|interests in the trademark. While this may appear to be a fair use
|exception, it really isn't. The big difference is that under copyright
|law, what you can do under fair use is pretty explicitly laid
|out (go to
|the U.S. Copyright Office <http://lcweb.loc.gov/copyright/> if
|you want to
|see for your self) but under trademarks what constitutes dilution or
|infringement isn't nearly as clear. Dilution/infringement is
|initially up
|to the trademark holder, i.e. when they determine whether they
|should send
|cease & desist letters and/or bring suit. If there is a lawsuit, the
|issue of dilution/infringement then becomes one for a court to
|decide.
|And combined with the obligation that trademark holders have
|to vigorously
|defend their trademarks or lose them, some trademark holders
|fear that if
|they don't defend against even the most benign uses of their trademarks
|they may lose the mark.
|
|Probably the clearest safe use of another's trademark is for comparison
|purposes in advertising, followed closely by compatibility
|claims. But in
|both of these instances you are in no way claiming that your product is
|under the trademark your are comparing yourself to or claiming
|compatibility with. So you can't just slap the D20 trademark
|(or Dungeons
|& Dragons, White Wolf, etc.) on your product, acting like your product
|falls under that mark. And since the whole point of the D20 mark is to
|indicate compatibility, not following the D20STL and claiming
|compatibility with D20 is likely to end up with a lawsuit.
|Wizards (the
|owners of the trademark) will contend that you can't be
|compatible without
|following the D20STL; you will contend that you are
|compatible; either a
|court or your wallet will decide who is correct.
|
|alec
|
|
|
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