> Alec A. Burkhardt
>
> Actually, from what Ryan has said, I don't think that would be the
> case. Just because you are in violation of the OGL will not be sufficient
> for any other user to sue you over your use of another third parties
> trademark. How are other OGL publishers injured by the use of a third
> party trademark? U.S. courts require litigants to actually be effected by
> the case they are involved in. What type of claim do you see other OGL
> publishers attempting to bring against someone who uses a third party
> trademark without permission? No damage is done to publishers of the
> other OGL material by the subsequent OGL publisher improperly using
> trademarks.
This is a simple progression of logic:
1) Party A creates a document under the OGL
2) Party B as a trademark (which may or may not be related to the game
industry)
3) Party C creates a derivative work of Party A, also under the OGL, but he
uses a trademark
from Party B which is consistent with trademark law but a violation under
the OGL
At this point, Party A may notify Party C of the breach. Party B may also
notify of a breach, but only has recourse as far as trademark law is
concerned, because they are not party to the license. They CAN notify all
of the parties named in the Contributor Credits, who may or may not care.
Once notified of a breach, Party C has 30 days to remedy that breach. If
they do, then everybody is happy. If not, then Party C has created an
unauthorized derivative work because they didn't follow the terms of the
OGL. This is grounds for a suit of copyright infringement (but not
trademark infringement) between Party A and Party C. In any case, Party B
may seek relief for trademark infringement, but not copyright infringement.
> Since the original thrust of the clause appeared to be preventing the
> advertising use of outside trademarks without permission, something that
> is permissible under current trademark law, the point of the clause seemed
> to be to prevent that use.
If this is the purpose of the clause (and I agree that it is), then let it
say so and not try to police the use of trademarks in general. I agree with
this purpose - it is good for the business health of the industry.
> The clause does reduce legal
> entanglements as it makes it clear to OGL publishers that the use of
> another's trademark may have legal consequences - something this list has
> made apparent that many people aren't aware of.
No, it exacerbates them. Because of the cost involved in performing a
trademark search, nobody is actually going to run one. This means authors
will miss some. If, later, some bright boy figures out that they used one
without permission, they will be in breach of the OGL and have to remedy it.
So will everyone who made derivatives of that work. What does Remedy mean?
It could mean anything from a rewrite to a lawsuit. At that point, all
protections of the OGL are gone.
Not even Hasbro could afford to abide by this provision.
-Brad
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