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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