Mr. Dancey:
You continue to surprise me with the sincerity and forthrightness of your
posts. Despite how I may feel about some of your conclusions, I cannot help
but be impressed with the fact that Wizards selected exactly the type of
individual necessary to attempt to champion a renaissance in the industry.
I applaud you sir!
Faust
>From: "Ryan S. Dancey" <[EMAIL PROTECTED]>
>Reply-To: [EMAIL PROTECTED]
>To: <[EMAIL PROTECTED]>
>Subject: [Open_Gaming] My opinion on why "compatible with" is a "bad thing"
>Date: Wed, 2 Aug 2000 19:30:19 -0700
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>
>There has been a lot of discussion about the specific issue of whether or
>not a notice such as:
>
>"This product is compatible with Dungeons & Dragons(R)."
>
>Is a legal (and ethical) thing to put on the cover of a roleplaying game
>(with or without the "This trademark is not used with permission" clause.)
>
>These are my reasons for believing that it is neither. I have no real idea
>of whether this opinion would hold any weight in court. The case citations
>I have read, and my conversations with our legal counsel lead me to believe
>that it would be a very challenging case to pursue. Nevertheless, it is my
>opinion, and in the interests of disclosure, I think you all have a right
>to
>know what that opinion is.
>
>The trademark law exists for one specific reason: To allow a company to
>make a promise to a customer. The idea is that if a company asserts and
>registers a trademark, the company has the ability to use that mark as
>shorthand for "We make this product, you know us, you know our product
>quality, you recognize the added value of our craftsmanship and customer
>service as opposed to a generic good of this type. By using this mark, we
>promise you that we will do our best to live up to your expectations, and
>you can expect us to stand behind this product to the best of our
>abilities.
>We want you to look at a shelf full of similar products, and recognize our
>products from all the clutter when you get ready to make a purchase
>decision."
>
>For 99% of the goods in the world, the application of the trademark laws
>are
>pretty straightforward for most types of commercial goods. You cannot, for
>example, produce a car and call it a "Ford"; no matter how much you
>disclaim
>ownership or permission of that mark.
>
>In our little corner of the commercial universe, we have an odd situation.
>Instead of selling a tangible good designed to be used alone and without
>further support, we are actually selling you the first of many hoped for
>purchases of our intellectual property bound up in the form of a book. The
>way we make money is by inducing consumers to buy more of those books over
>time, and by convincing new consumers to buy the first books and thus
>expand
>the total number of people using our IP.
>
>You can (by court precedent) make a floor mat, put the Ford logo on it, and
>then sell that item with the proper disclaimers of trademark ownership and
>a
>clear indication that you are not Ford and that you made and are
>responsible
>for the quality of the floormat in question. Ford's trademark is for
>"cars"
>and "floormats" are not cars. Therefore, there is an assumption that even
>though the mat has Ford's trademark on it, you will know and understand
>that
>Ford didn't make it and can't be held responsible if the product quality
>sucks. While I personally disagree vehemenently with this theory (as a
>brand manager, I know that the brand equity extends to every use of the
>brand identifiers, regardless of whether that imagery is on a car or a
>floormat) I am forced to admit that a court did so rule, and so therefore
>the law does allow this type of use.
>
>My argument is that by publishing a supplement or an adventure "Compatible
>with Dungeons & Dragons" or "Suitable for use with Dungeons & Dragons" or
>whatever the construction is, you are in fact selling something in the same
>category as the trademark. You are selling a game product. If you were
>selling dice, or miniature figures, or playmats, or writing utensils, I
>would have to concede that there is little chance your use of the mark with
>the proper disclaimers would confuse anyone.
>
>But in the case of game products, I feel that the exact opposite is true.
>I
>think there is a very reasonable chance that someone will buy a product
>carrying such a notice and believe that >we< stand behind it, either as a
>licensor, or in some form of review capacity. In other words, I think it
>is
>reasonable that there will be consumers who will see such a product, buy it
>under a mistaken idea of what it is, and be disappointed when it does not
>live up to their expectations, and will thus dilute the value of our
>trademark and create confusion in the minds of consumers.
>
>I think that the analogy with Microsoft Windows is flawed. Most consumers
>never buy Windows and have no commercial relationship with the "Windows"
>trademark. Furthermore, I think it is reasonably understood by the market
>that most people who produce software that is "Windows compatible" aren't
>Microsoft, and Microsoft isn't standing behind those products in any way.
>I
>also think that Microsoft believes (rightfully so, in my opinion) that
>having the largest and most diverse collection of software available
>creates
>and protects Windows as a de facto standard, and isn't about to tackle the
>problem of asking all those vendors to get Microsoft's permission before
>using their mark to indicate compatibility.
>
>If the gaming business evolved the kind of trademark usage that the
>software
>business has (where in a small box somewhere on the product, without a logo
>and without any obvious attempt to represent itself as a licensed good, a
>product indicated that it was "Dungeons & Dragons Compatible"), I think we
>might see some of the same benefits that Microsoft sees, and I would not
>fear the dilution and confusion as much as I do. But what I expect to see
>(and have seen in the past) is an attempt by some producers to confuse the
>public by making that compatibility notice one of the most prominent
>features on the cover of the product - clearly intending to use that notice
>as a way to connect to the value of our brand and tap our brand equity.
>
>I think that's wrong, and unethical - even if it might be technically
>legal.
>I think it is the publication equivalent of lying to people, and falsely
>misrepresenting oneself.
>
>In my meeting with legal last week, they raised a series of questions about
>Open Gaming; to which I would respond "does the Open Gaming License make
>that fear more, or less likely". In almost every case, we all agreed that
>the license actually >reduced< the likelihood of someone doing something we
>find commercially damaging to our business. However, in one specific case,
>I think we have a consensus that the risk factor goes up, rather than down.
>Because the OGL allows an unprecedented use of the core materials of D&D
>that will extend far, far beyond the mere expression of the game rules, the
>value of someone claiming "D&D compatibility" skyrockets - because for the
>first time, the product will legitimately be reasonably compatible. So we
>believe that the number of people who might be tempted to abuse the
>trademark law will go up, rather than down.
>
>We also feel that problem will extend to anyone else who is successful with
>Open Gaming. Each and every person who is trying to see if this new
>business model will work is investing in the creation of a brand. Look at
>how many companies have been formed (at least by agreement of the parties,
>if not formally with incorporation yet) to work with OGL/D20 material.
>There is a real danger in my opinion that the ability to make money in this
>field will be compromised by the liberal exploitation of other people's
>trademarks - and if nobody is making any money with Open Games, then the
>concept will be nothing more than an intellectual curiosity and there will
>never be a market force pushing consumers to embrace the concept and demand
>Open Games from other publishers. And if that market force does not
>develop, the entire experiment will be a failure in my eyes.
>
>Legal is working on some language for the OGL to address these concerns.
>The language must go in the OGL, because that is the primary governing
>agreement that will control the use of the copyright material we are
>releasing. Putting it in the D20STL is useless - someone who wants to
>poach
>the trademark doesn't need the D20STL and won't use it anyway. Legal has
>not shown me a first draft yet of what they propose. I am going to LA
>tomorrow and happen to be flying with Brian Lewis; we may have time to talk
>about the issue in more detail. In any event, the language that Brian is
>attempting to craft is going to be focused on this narrow problem, and he
>is
>an excellent lawyer and will be careful to avoid something that is overly
>broad.
>
>I hope this essay goes some distance towards addressing the confusion about
>this issue and clarifying my position.
>
>Thanks for listening.
>
>Ryan
>
>---------------------------
>Information on Open Gaming: www.opengamingfoundation.org
>Information on RPGA: www.wizards.com/rpga
>D&D 3rd Edition is coming!: www.3rdedition.com
>
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>For more information, please link to www.opengamingfoundation.org
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