On Tue, 1 Aug 2000, Faustus von Goethe wrote:
> >Ryan has already pointed out, the use of trademarks within a product is NOT
> >something permitted by trademark law.
>
> Mr. Dancey is simply incorrect, insofar as federal law is concerned.
Actually, he's not. And you correctly explained why below.
> DILUTION: In addition to bringing an action for infringement, owners of
> trademarks can also bring an action for trademark dilution against any use
> of that mark that dilutes the distinctive quality of that mark, either
> through "blurring" or "tarnishment" of that mark:
>
> Blurring occurs when the power of the mark is weakened through its
> identification with dissimilar goods. For example, Kodak brand
> bicycles or Xerox brand cigarettes.
>
> Tarnishment occurs when the mark is cast in an unflattering light,
> typically through its association with inferior or unseemly
> products or services. So, for example, in a recent case, ToysRUs
> successfully brought a tarnishment claim against adultsrus.com, a
> pornographic web-site.
>
> None of this prohibits referring to trademarks in a published work.
Since every holder of a trademark can take a different view as to what
exactly constitutes dilution of their trademark, this clause permits
trademark owners to bring suit whenever they don't like what their product
is being associated with AND feel they have a chance to win. And winning
does not mean to win a lawsuit in court - it simply means being able to
either force the "offending" individual to stop their use or force a
settlement. Since many trademark holders have rather large sums of money,
if they want to stop some small group from publishing an OGL product
containing their trademark this wouldn't be a problem. And the proposed
change to the OGL doesn't effect this fact in any meaningful way.
> Further, the use that Mr. Dancey refers to, eg, a small label saying:
>
> This product is designed to work with Dungeons and Dragons. The
> makers of this product are not associated with The makers of
> Dungeons and Dragons and have used this trademark without
> permission.
>
> is ... simply ... not ... against ... the ... statute.
And no one has said it is. It's a clause that goes beyond the current
trademark law and is a relatively minor concession for someone to make in
order obtain the use of copyrighted material that would otherwise be
illegal for someone to use.
> >I'm just not certain where people are having so much difficulty with this
> >proposal.
>
> I'm personally (and I am not alone it appears) going to have
> philosophical concerns with *any* provision in the OGL that seeks to
> extend restictions into areas of the law where restrictions currently
> do not exist - particularly when that restriction seems to benefit one
> player in the market almost exclusively.
So WotC removes an extremely huge restriction (copyright law) but wants to
add a small restriction (trademark use).
Ok, here's where we differ I guess. Since it is illegal to publish the
material that is going to be permitted by the OGL, I don't have any
problem with there being a few restrictions added above current law. Why,
because the alternative could just as easily be that the OGL simply dies
because it no longer becomes worth WotC's effort. It appears that a lot
of people want to be given a great deal of freedoms they otherwise
wouldn't have without having to do anything in return. I have yet to see
anyone articulate a single use of trademarks that the new clause is going
to impede other than advertising. The use of material within a product
can already be attacked at the whim of the trademark holder
> >Where is it, exactly that people intend on using trademarks other
> >than for advertising purposes?
>
> What does it matter to you? If the use listed above is not illegal,
> has never been illegal, and (god willing) we will never have a system
> that is so restictively anal and paranoid as to make such a minor and
> unharmful use against the law.
I guess we just view this differently, as I hardly see the new clause as
being either anal or paranoid. It's an extremely minor restriction which
really only will impact people who are attempting to trade off of the
copyrights of others. As far as I'm concerned, such people deserve no
consideration in this matter.
alec
-------------
For more information, please link to www.opengamingfoundation.org
