"Ryan S. Dancey" wrote:
> > Put simply: what's to stop a non-licensee from slapping a d20 logo on
> > their work?
>
> We'll sue them. And we'll win. At a minimum, in addition to being a
> trademark infringement case, it's a copyright infringement case too.
>
That depends. Using the d20 logo on the OGF page is almost certainly an
infringement of copyright, but using a slight variant might very well be OK,
while still having the negative effects I mentioned. If that's the case (and
assuming the content is non infringing) then you're relying exclusively on a
trademark theory. In which case...
>
> > Trademark law requires that the licensor of a trademark (here, WotC)
> > maintain some kind of quality control over products carrying the
> > license.
>
> That is not accurate. The trademark law makes no distinction as to
> "quality".
With all due respect Ryan, I've previously cited legal authority that says that
if a licensor doesn't exercise some reasonable form of quality control of their
product they've abandoned the license at law (Restatement of Unfair Competition
section 33).
The "quality control" requirement _doesn't_ mean the licensor is guaranteeing
quality, only that they are exercising some (not a lot, just some) control over
the goods produced with the mark.
It's my understanding that Wizards doesn't have a policy of seeing d20
materials prior to publication. Is that incorrect? Failing that is there a
policy of post-publication review and compliance enforcement?
> A trademark is valid so long as it does not become a "generic"
> term in public discourse.
Or unless the trademark is abandoned at law, which is what happens to naked
licenses.
> There is little chance that "d20" will become a
> generic term like "roleplaying game".
>
This isn't about the generic term concept. That's an unrelated issue (and one
that has been beaten to death on this list in the past).
>
> The d20 System Trademark License is modled on the very successful Compact
> Disc trademark system instituted by Phillips, and the VHS trademark system
> used by JVC.
>
I can't speak to either of those licenses without seeing the language used, or
without knowledge of company operating policies. However I can all but
guarantee they include some kind of supervisory control either in name or fact.
>
> > Naked trademarks are held to
> > be abandoned, meaning that the prior owner of the mark no longer has
> > exclusive rights to the mark in trade.
>
> By acknowleding WotC's ownership of the mark, each licensee reinforces that
> ownership. That acknowledgement is required as a condition of accpeting the
> terms of the d20 System Trademark License. If anything, the d20 mark is
> stronger today because it appears on so many 3rd party sources >under
> license< than it would have been had it just appeared on WotC's books.
>
No doubt. Even without that clause in the STL the law of every jurisdiction in
the US precludes trademark licensees from making an abandonment claim (although
the duration is different by jurisdiction - sometimes it's for the duration of
the license, sometimes forever).
The problem isn't the current health of the d20 mark, or challenges from
parties to the STL. The issue is non signatories who show up after the d20
mark has achieved the status in the market that its supporters want to see.
The above is not legal advice. Don't take legal advice from strangers on the
internet.
Greg
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