> Ryan S. Dancey
>
> The biggest change we're going to be making is adding a clause that
> basically prohibits anyone who uses Open Game Content from using another
> company's trademarks on that product without permission.
I basically like this, but I think it's too broad for the OGL. I think what
you're really trying to do is keep someone else from using your mark for
marketing purposes without your permission. I think this is a good idea.
Marks inside the document are much less damaging. If an OGL module is set
in the Forgotten Realms, but is prohibited from saying so until after it is
purchased/downloaded, then the module is being distributed on the merits of
its content and not because of other people's property. It would be very
difficult for such a work to have a major impact on the profitability of
official Forgotten Realms material, because no distributor would be able to
tell a potential recipient that the OGL work was compatible with or even
related to the Forgotten Realms. This would in no case excuse an OGL author
from using another company's trademark improperly under trademark law (a
relatively well-defined section of IP law).
This language also has a subtle danger to free trade of OGL works. Here's
why: Company A makes an OGL work. Company B make a derivative of Company
A's work that is mostly a copy that has been liberally interspersed with
their own trademarks. Company B refuses to grant permission to anyone to
use their trademarks. In this case, company B has effectively closed
Company A's work, because no one can distribute Company B's work without
permission. A new company could rewrite Company B's work to get around the
trademarks and still comply with OGL, which they could do anyway under
copyright law, and so the spirit of the OGL has been severely compromised.
I would support such a clause in the OGL if it were modified to cover
trademark use "for marketing and advertising purposes only."
I would support such a clause unchanged in the d20 STL. The d20 STL is
clearly a special-case license with close ties to d&d. Inevitably, it is
WotC's marks that would be infringed most often in d20 works, and certain
concessions are logical and reasonable under those circumstances. I expect
that companies with large IP stakes in Open Gaming will develop their own
variations on the d20 STL to protect their property just as WotC seeks to
do.
The biggest beneficiary of this clause is WotC (by a large margin), because
it means your legal department won't have to prove trademark infringement in
OGL (and thus d20) material. The carrot for the rest of us is quite small.
> Brian also would like to take a crack at cracking the nut of
> "game rules" as
> a definable intellectual property. He's going to try and draft some clear
> language that will make it very easy to keep the game mechanics separate
> from story-character IP, and get rid of some of the ambiguity in the
> existing license.
That would be great.
-Brad
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