"Product Identity" means product and product line names... and any other trademark or registered trademark clearly identified as Product identity by the owner of the Product Identity...
Keep in mind that the definition of Product Identity doesn't say that the person making the declaration has to be a Contributor (which would limit it to people in your Section 15).
Now, generally there are only two types of people who have enforceable rights or obligations under contracts:
a) parties to the contract; and
b) third party beneficiaries of a contract
If "third party beneficiaries" sounds like legalese, the easiest example is in life insurance. If you are my insurance agent and I take out life insurance and assign benefits to my wife, if I die, my wife has a right to sue to obtain the benefits if you don't give it to her like you are supposed to. She is a third party to the contract, but she is the beneficiary.
If one puts aside (intent and industry practice -- I know, that's a big stretch for me), and presume that anyone and everyone who wants to say the phrase "This is Product Identity" is a third party beneficiary, then the person doesn't have to be listed in your Section 15 and indeed doesn't to even be a direct party to the OGL to declare something as PI and bind you to not using it. Ugh! Now, I feel that's against the intent of the contract, against industry usage, and would make the contract practically unusable/unenforceable. And I know those are huge factors in contractual construction.
However, there's nothing saying explicitly that PI has to be declared by anyone in particular. I was thinking that you had to be a party to the contract to declare PI, but then I asked myself this question: can a third party beneficiary declare PI without actually being a party to the contract or an assignee.
Ugh!
This discussion festered up in the wake of an observation about whether you are bound by the PI in the SRD if you don't quote OGC from the SRD and include it in your Section 15.
Thoughts? Comments?
Lee
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