Not saying I agree or disagree that d20 could/should go to WOTC (in fact it is fine with me if it does because I hope to benefit from the money that will be behind that trademark) but I think that it is something more along the lines of this (see next) than the example you gave Ryan.
As of today, February 21st, I am announcing the creation of a new (although unreleased) product called....(drumroll) "The Diceless System" (tm) This is a new Roleplaying Game system based on the NON use of dice! That's right...no specific die type. THAT said I now own: www.dicelessrpg.com www.dicelesssystem.com (Seriously...I bought them today at Dotster.com) I even have a place holder up! http://people.mw.mediaone.net/thetassins/dicelesssystem.htm So, from here on out I don't want to hear talk of "Diceless Gaming", "Diceless <gamename>", "FreeDiceless" or anything else because its mine. Got it? I own it. And I am going to fiercely protect it. Its my Trademark. And there is where I see the flaw in the logic...it may be perfectly possible to trademark "d20 System" but I think an equally good argument can be made that it is part of the public understanding of RPGs and the descriptions of said RPGs and not something you can control completely. As a result I don't see how "Free20" could really be considered an infringement on the d20 trademark. At 01:48 PM 2/21/2002 -0800, you wrote: >It doesn't really matter if a 3rd party uses the term descriptively; it >matters if a commercial publisher does. And it doesn't matter if the term >is used as a reference, it matters if it is used as a descriptive mark >designed to attach a connection between a good or service and the mark itself. > >The GDW house system was often referred to in their own products as "the >d20 System", but I've never found any GDW branding efforts based on the >term (though I could make the case that I have such literature building a >brand around "GDW House System"), and that material is no longer >commercially distributed by the publisher anyway. They're the only >significant publisher I found who used the term in commerce as a >descriptive mark, rather than as a shorthand reference. > >I doubt anyone is going to find any relevant trademark usages of "d20 >System" for RPGs. There's certainly nothing like the branding campaign >that WotC has engaged in to drive awareness of the "d20 System" trademark. > >Let me give you an example. > >Let's say that I produce a computer that happens to have an orange >case. For several years, a small number of people use "Orange" as a slang >term to refer to my RyanCo Datamaster 5600 computer. However, my >trademark is on "RyanCo Datamaster", and I don't assert any trademark of >"Orange". In other words, I never actively attempt to get consumers to >identify the "Orange" name with my products or services. > >You decide that you're going to produce a new computer, and call it the >"Orange". You create a branding campaign that raises the awareness in the >general public that "Orange" means the computers made by Cadenhead >Computer, Inc. You then assert a trademark for "Orange" and proceed with >an attempt to register that mark. > >What happens? > >Well, some people who are fans of the RyanCo Datamaster 5600 might feel >that their "pet name" has been appropriated by the faceless corporate >drones at Cadenhead Computer. They could object to the registration on >the basis that they believe there are enough consumers who use "Orange" as >a synonym for "RyanCo Datamaster 5600" to constitute a material number of >consumers who might be harmed by the successful registration of "Orange" >by Cadenhead. To make that determination, the USPTO would look at the >total number of consumers in the targeted market, and compare the number >of people likely to be materially harmed, and then decide if there are >enough such individuals. > >My valient lawyers may believe that despite my stupidity in not asserting >a trademark on "Orange" long ago when they advised me to do so, and >desipte the fact that I failed to attempt to quash any use of "Orange" as >it related to any other computer product (also as they advised me to do), >I may still be able to assert a prior trademark claim on "Orange", or at >least throw so much doubt and confusion into the process that the USPTO >decides the mark has entered common usage as a generic synonym for >computers (or perhaps just computers with orange cases) and stop the >registration. To acheive either of those goals, I have to prove that >there's a material number of consumers who might be harmed by the >successful registration by Cadenhead Computer, which essentially puts me >in the same basket as the fan protest above. > >In either event, registration is unlikely to be denied, unless there >really are a whole lot of consumers who use "Orange" as a synonym for my >product (or computers in general). > >[if you replace "cell phone services" with "computers" in the example >above, and switch the venue to the UK, you have a real-world example, btw.] > >In the case of RPGs, I don't believe that any significant publisher can >come forward and assert a prior commerical use of "d20 System" as a >trademark, I know that no publisher asserted a registration for "d20 >System", and I do not believe that any materially large number of >consumers use the term "d20 System" as a synonym for any specific product >3rd party, nor do I believe that any number of consumers use "d20 System" >as a generic synonym for "roleplaying game". > >So I think the registration will be granted. > >Ryan >_______________________________________________ >Ogf-l mailing list >[EMAIL PROTECTED] >http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
