<<A trademark which is not declared does not cease to be a trademark because
it appears in OGC. It will remain a trademark so long as Hasbro chooses to
defend it. As we all know, you cannot use another's marks without express
permission in another independent agreement. >>
No -- we cannot use another's trademarks as a declaration of compatibility or co-adaptability without another independent agreement. You, in fact, can use other's trademarks under "fair use" (outside the shelter of the OGL) for purposes other than compatibility and co-adaptability declarations.
Moreover, the question becomes whether declaring your trademark as OGC allows others the right to use it as OGC provided they do not make compatibility or co-adaptability declarations.
However, I think Ryan raises a critical point -- what was the level of authorization of the person who listed DM as OGC? If he is authorized to make all decisions regarding what to declare as OGC vs. PI (probably not likely) then the mistake stands. If, however, is authorized to "take all the rules content and declare it as OGC provided that he doesn't open up any trademarks as OGC", then the employee did not have the sufficient rights to make the declaration and so the declaration is invalid.
I think the thread is worth continuing, regardless of applicability to WotC... What happens in a one-man-shop where a PDF publisher makes a mistake like this with his own publications? He's clearly authorized to make decisions as a sole proprieter. Should he employ someone else for a "last pass" edit and release of his products so that he has somebody to blame as being unauthorized in case he needs to revoke something?
Lee
