On Fri, 20 Apr 2001, Greg Gliedman wrote:
> "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):
SNIPPED Restatement
Ok, now I see your argument. The argument is that the trademark has been
abandoned because it was never protected ("naked"); this wasn't in the
message I responded too so I wasn't following how the mark had been
abandoned before it had really been in existence. I don't want to turn
this into a legal discussion list (and I'm off for the weekend anyway so I
won't be able to respond before Sunday evening), but your argument
essentially claims that no one can ever license someone else to use a
trademark unless that license requires direct approval of each and every
instance of the use. I'd be surprised if there is case law to support
this. Wizards exercises quality control through the requirements of the
license. As long as you are in compliance with the license you are by
definition maintaining the quality of the trademark. The trademark
implies NOTHING about the literary, stylistic, layout, intellectual, etc.
quality of the product. It just certifies that product is compatability
at the level specified in the D20STL.
Now if people start putting out products using the D20 logo which don't
comply with the D20STL and Wizards doesn't do anything to stop them, then
I could see the argument being made for abandonment. But I'd see it as
being difficult to argue that the D20STL makes for a naked trademark.
And I'm really not that down on human nature to assume anyone out there is
going to take the risks involved. (This would have to be fought out in
court - even another large corporation isn't likely to consider RPGs to be
worth the costs of such a court case.)
Of course Wizards is likely to suffer some bad press from defending the
trademark against the "little people" (i.e. fan web sites) but defending
doesn't mean suing right off the bat. A nice letter informing someone
they've misused the logo and informing them how to correct the problem is
likely the first defense. Then progessively nastier letters to people who
don't make the effort to fix the problem. And only as a last restort a
law suit to force compliance. And only people who are intentionally
violating the license are likely to go beyond step 1. I really don't
think there are going to be a lot of intentional violaters. Just a whole
lot of unintentional violaters due to typical human laziness.
alec
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