<<As my lawyer has explained it to me, and as I've had it explained by a>>
number of d20 publishers, though, you still wouldn't have a case unless the
other party was infringing on your VERSION of the gods. Whether or not they
use your open system with a public domain name wouldn't matter -- they'd
actually have to infringe on your closed USE of your new system in the
gods' game stats, not the use of the new system to make their own versions
of those same gods, period.
This goes back to the old debate over whether PI merely erases words and labels them not "illegal" to use, but merely unlicensed, or whether as a consideration for the grant of the OGC you agree to give up your rights to use certain materials in conjunction with the OGC.
So, consider this:
Name: Bowlboe Bagents
Description: A storm god, with swarthy skin, long flowing blonde hair, and a fondness for pizza. He has the appearance of a clean shaven man in his early twenties, is lithe in frame (though inhumanly strong), and has a rumbling laugh.
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Say somebody OGC's the description and PI's the name.
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A) One reading of the OGC simply erases the name and allows the recipient of the OGC to fill in any name of his choice. Don't be confused with the fact that a name is in the public domain. Untrademarked names are always in the public domain. The only copyright protection a name is likely to have in most cases is when it is paired with a specific character description.
So, if you come up with a character named "Bowlboe Bagents", I might be able to use the name in my own stories so long as the character I attach it to has nothing to do with your Bowlboe Bagents. If you make no claim of trademark over Bowlboe Bagents, then it's likely that the name itself has no copyright protections when separated from the description.
Now the OGC specifically protects character names, but this reading, de facto gives little or no protection at all to character names except where they are trademarked. Under this reading, even though you PI'd the character name, I could probably still find ways to use the name and still use your OGC in the same work. For instance, if "Bowlboe Baggins" was not trademarked, it might be possible to erase the description and come up with a totally distinct one and use the name in a work along with the other OGC that the user had licensed.
Moreover, under this reading it is very unclear how much protection the pairing of the name and the original description would have. Why? Because the description is licensed, and this reading doesn't prevent you from using the name, it merely erases it for you to fill in. This reading of the OGL thus seems to provide almost no useful protections for a name if the character description is already licensed, as it is NOT a reading which supports a prohibition against the use of the name in question.
B) This reading of the OGL says that "I'll give you my OGC, but _only_ if you avoid things I mark as _PI_". This reading would allow you to broadly PI things as forbidden terms which the person would have to NOT use if they wanted to use your OGC.
This reading opens up all sorts of questions on what can be PI'd and whether a person can PI an arbitrarily long list of excluded terms precisely limiting when the OGC can be used.
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Both of these readings beg one question, who owns an "untrademarked name"? PI is declared as PI by its owner. And names used apart from their character descriptions may not under normal IP law be "owned" unless they are a trademark.
If you called a dog in your new book "Gandalf the Gray" you would not be in real danger of losing a copyright infringement case. The dog has nothing at all to do with Tolkein's character. You might be in serious danger of a trademark suit though.
I find both of these readings to be inherently problematic. The first effectively grants little or no protection to character names if their descriptions have been licensed. The second may potentially give rise to some works that follow the letter of the license, but which may end up being in violation of the spirit of the license.
Lee
