>From: "Alec A. Burkhardt" <[EMAIL PROTECTED]>
>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.
That's actually a broad misconception about the way the courts work. The
plaintiff would have to prove that the use tarnished their product
irrevocably - it would be their burden to do this. Given opposition and the
use suggested by Mr. Dancey, they would most likely FAIL. TSR tried this
more than once in the bad old days, and they failed in court every time.
But I agree with your basic reality - companies want to avoid lawsuits - AND
they want to avoid bad press. There is NO DOUBT in anyones mind that (unlik
TSR) HASBRO has deep enough pockets that they could sue any of us out of
existence - whether they had a legal point or not. The only thing
preventing them from doing this to EVERYONE is bad publicity.
BUT ... they want us to play in their sandbox, develop modules and
supplements for the industry, and help revive the flagging market for D&D.
Fair enough. I'm game, and I have always wanted to do this.
This clause makes it so they don't have to PROVE anything to win such a
lawsuit against any OGL producer. They don't need to prove tarnishnment,
and there is no standard of fair use.
THE ISSUE is not what I want to get away with, it is whether I (and you, and
you, and you) want to use OGL AT ALL if it becomes apparent that it is
simply a vehicle for adding additional restrictions.
You really don't need to, you know.
> > 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.
Actually they have. More than once.
>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.
The materiel that the majority of us are going to be using is arguably not
copyrightable.
> > >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).
Seen Chapter one of the SRD? It is obviously a pure rules extraction. It
is more than arguably not copyrightable. WotC is not giving away nearly as
much as you think. (Oops here we go again with the emails that tell me WotC
is the great Sacrificer - the Martyr of the gaming world... Ho Ho)
What they ARE doing is a worthy goal - creating a "Safe Harbor" - an area of
trade that is free from the threat of lawsuit. I have no objection to this.
But I do intend to fully explore all of the ramifications of any proposed
restriction.
I also feel strongly that any clause that would sustantially benefit WotC
should be in the STL, and NOT the OGL.
>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.
Oh please. Our debates are not going to cause OGL to die. This will either
happen because WotC or Hasbro thinks twice and cancels the whole idea (what
I expect), or it goes ahead and *we* don't sign up.
We don't make it harder for them by hashing out these issues - we make it
easier.
>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
Not with impunity. In several cases TSR had to pay the opponents legal
fees.
> > >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.
It is difficult to comprehend that in your morality it is perfectly OK for a
large company to pursue a frivolous lawsuit with the intention of destroying
a smaller company (an illegal but possible act), but it is a mortal sin for
a smaller company to tell its customers that their product "works" within
some other product's rules structure (a completely legal act).
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