"Alec A. Burkhardt" wrote:
> On Fri, 20 Apr 2001, Greg Gliedman wrote:
>
> > > Wizards does have a certain amount of Quality control on the D20
> > > Trademark.. the guide and liscence itself. If you don't comply then
> > > you're in break and Wizards (or really anyone) can say, "Hey Stop
> > > selling this and destroy it" Simple as that.
> >
> > But in the situation I'm discussing the party isn't a signatory to the
> > d20 license. Without being a party to the contract there can't be a
> > breach. Any remedy would have to come from straight trademark law, and
> > if all Wizards has is an abandoned license they have no case.
>
> How exactly has Wizards abandoned the D20 trademark? Having an open
> license for its use such as the D20STL does not constitute abandonment
> unless there have been major changes in the law since I graduated in '91.
>
AFAIK it's not a new development. Section 33 of the Restatement (Third) of
Unfair Competition covers this issue. Here's a quote from comment (b):
"An uncontrolled or "naked" license allows use of the trademark on goods or
services for which the trademark owner cannot offer a meaningful assurance of
quality. When a trademark owner fails to exercise reasonable control over
the use of the mark by a licensee, the presence of the mark on the licensee's
goods or services misrepresents their connection with the trademark owner
since the mark no longer identifies goods or services that are under the
control of the owner of the mark. Although prospective purchasers may
continue to perceive the designation as a trademark, the courts have
traditionally treated an erosion of the designation's capacity for accurate
identification resulting from uncontrolled licensing as a loss of trademark
significance, thus subjecting the owner of the mark to a claim of abandonment
under the rule stated in s 30(2)(b)."
This is consistent with just about all the caselaw on the issue I've read
(which is to say some, but hardly a lot).
The only quality control Wizards exercises with d20 products is post-release
contract enforcement. Based on my reading of the cases I don't think that's
anywhere near enough to satisfy the "reasonable control" standard. The
reality of the situation may be that this is an acceptable risk to both
Wizards and their licensees - this isn't the sort of issue that will be a
problem soon. OTOH for those with a long term interest in seeing the project
work it might be something worth thinking about.
On a somewhat OT note I was supposed to design three tournament PC's this
week - I never thought I'd see the day when I screwed around talking IP law
rather than design a 9th level party...
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