| Well, catching up on the last 416 posts has been interesting. There were
some discussions that led to the following. In reviewing the OGL 1.0a again (after not having looked at it in months) I noticed that the definition of Trademarks in section 1.(f). seems a bit whack. "(f) "Trademark" means the logos, names, mark, sign, motto, designs that are used by a Contributor to identify itself or its products or the associated products contributed to the Open Game License by the Contributor" It seems by the nature of the defintions and various clauses that the license leaves a lot open to legal debate about the nature of trademarks and the trademark "protections" the OGL provides. First off, the definition of Product Identity clearly implies that trademarks and registered trademarks are not automatically considered Product Identity by virtue of the fact that they must be identified as Product Identity. The License is also vague as to what this means because there is no other specification as to what clearly identified means with regards to PI, especially in light of the fact that PI can be declared "outside" of works containing OGC. And no I don't mean "Gee what typeface should I use..." type pondering. Second, the trademark restrictions ("protections") come under section 7. Use of Product Identity. This implies that there are no restrictions (other than extant normal laws) on the use of trademarks unless those trademarks have been declared as PI. (This is one way to interpret the placement of the restriction within the Section and relies on the previous observations. I don't think it would hold much water but still...) Also, in Section 1.(d) defining OGC, the words "the Product Identity" are used (emphasis mine) implying "the specific set of PI of a particular product covered by the OGL", as opposed to ALL PI in ALL OGL'ed products. It is a given that even the idea of a "product covered by the OGL" is nebulous but the wording does create inconsistencies. A reading of the non-standard definition of trademarks (1.(f)) further supports the possible argument that trademarks, as mentioned in the OGL, are not just any trademarks a company might have and use, but instead only are the trademarks specifically declared as PI and possibly even those only declared within the product itself. [This last bit I feel is makes little sense as it is based on the assumption that only PI declared within a product counts for restrictions, which countermands the whole idea of PI being useful. Umm. Why declare PI in a product if it affects no others?] Anyhow, I was always under the impression that, trademarks and registered trademarks existed independently of OGC and PI, and that they could not be referenced without permission, regardless of whether they had been PI'd or not. Additionally, trademarks could be used by a contributor to refer to material that was part of a product under the OGL, but the contributor necessarily had to have permission or ownership of said trademarks, and that those trademarks were always in fact considered PI whether declared so or not. This is how I thought the OGl was/is supposed to work, but I am not sure that is what is happening with the current language. Again I point to the wonky definitions; and the placement of the restrictions under Section 7. as opposed to being an independent clause further muddies clear support for this view in the language of the License. The main problem as I see it is, is that there is some assumption that trademarks (as defined by the gov.) are automatically PI, which is clearly not the case under the OGL 1.0a. I have left registered trademarks out of this discussion, as Ryan (I think) once said that their use did not need to be defined, having clear meaning in the law whenever the words "registered trademark" are used. (Capitalization is inconsistent in the license as has been noted by posters. Again not a good thing. Let's face it many people are going to read the OGL and start projects before they think "Wow, maybe I should hire a lawyer to explain this to me before I do anything." Clearing this up as much as can be will only help in the long run. ) Questions raised: 1) Does defining Trademark in this way (Section 1.(f).) "replace" the normal definition of trademarks as used by say the US.Gov.? or is that definition also in assumed operation throughout the license? Meaning that throughout the OGL are we to assume the use of the word Trademark means this specific definition or may we assume that the "usual" meaning is in effect too? 2) If only defined exactly as worded, how is it that these Trademarks are being "contributed" to the OGL? This makes little sense (to me at least). Shouldn't the definition include the "standard" definition of trademarks (which has nothing to do with whether they refer to material released under the OGL) and thereby include trademarks which might refer to material released under the OGL? My theory->Trademarks are never "contributed" to the OGL. The way the OGL is supposed to work means that at no time should trademarks be "contributed" to the OGL as this definition implies. Trademarks are only supposed to be used (not the defined used) in a product containing OGC if permission (written) has been secured from the trademark's owner. In further considering this matter I have drafted a revision of the OGL which besides clearing up some typos and inconsistencies, tries to address the trademark issue to make it more clear. It is an attached .rtf as I figure that is a fairly universal format? Anyway, it specifically "protects" trademarks even if they are not declared somewhere in the world as PI, by cleaning up the definitions and clauses. I still see a problem in that no version of the license states what clearly identified means regarding PI (as mentioned above); because, as I see it, PI can be declared outside of a "physical" distribution of OGC, unless I am wrong? I mean that was part of the whole point was it not? What constitutes clearly identified to those who do not read the webpage or documents where those declarations are made? My draft of the OGL at least extracts trademarks from this morass and gives them the protection they were supposed to get (based on my assumptions about how the OGL was to work). I also did a bit where the owners of PI and trademarks don't need their own written permission to use them with OGC, a provision not granted by the original OGL. Hee, I'd like to see Wizard's self permissions. (My reading says they do have to have them, BTW). Please let me know what you think and forgive the rambling of this post. All this (post and draft) were formulated simultaneously so there may be holes :). -Alex Silva [EMAIL PROTECTED] PS>Note there are changes throughout the draft so don't bother with this post and attachment unless this is a topic you really want to dig into. |
ALXOGL1b.rtf