On Tue, 1 Aug 2000, Faustus von Goethe wrote:
> >From: "Alec A. Burkhardt" <[EMAIL PROTECTED]>
> >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.
Hate to break it to you Faustus, but my statement is exactly how the
courts work with regard to trademark law. Yes, a plaintiff has to prove
tarnishment (never said they didn't), but they get to decide what is
tarnishment in their eyes first, then the court gets to decide if it
agrees. As I said, and you agree below, it often doesn't matter how the
court would view issue of tarnishment because of the legal costs involved
in defending yourself from such a suit.
> 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.
> > > is ... simply ... not ... against ... the ... statute.
> >
> >And no one has said it is.
>
> Actually they have. More than once.
Where? I certainly haven't. I haven't seen a post from Mr. Dancey that
has said this. And in fact, competitive advertising is not completely
protected by the trademark laws, if the it can be shown that such
advertising dilutes the value of the trademark (not the product, but the
actual trademarkt) the advertising can be restricted.
> >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.
An argument that has yet to be tested in the courts. And if you believe
in that argument, the OGL really isn't very important to you in the first
place.
> >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)
So then don't worry about the OGL - just go ahead and publish what you
want. I certainly don't consider WotC any of the things you call them
above, but I also don't have a problem with them attempting to protect
both their own IP and the IP of others while they are attempting to figure
out a way to permit the use of some of their IP.
> 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.
The clause benefits all publishers of OGL material, certainly anyone who
wishes to publish more than a single document and especially those who
intend to create their own campaign settings. And the clause would have
essentially no meaning in the D20STL alone, whereas in the OGL it would
also cover the D20STL.
> >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.
Yes, but this is even more difficult to achieve in the American legal
system than proving tarnishment. For the most part the American legal
system requires both sides to pay their own legal costs, no matter the
outcome of a case. You need to be able to show either malice on the part
of the plaintiff or complete frivolousness of the suit - neither is easy.
alec
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