On 8/2/00 7:30 PM, Ryan S. Dancey ([EMAIL PROTECTED]) wrote
>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.
That would only be possible if Ford has somehow lost Copyright on the
artwork involved in their logo. To put the words "Ford" on a bathmat is
definitely legal, as long as it is not being indicated as being part of
the Ford motor empire. To put the graphical logo of the Ford company is
only legal if that logo is not protected by copyright -- this is why you
don't see Apple logo t-shirts that are not authorized by Apple Computer.
Remember, graphical art can always be protected by copyright, even while
some art is also trademarked.
>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 you aren't using the trademark in an illegal way: you are indicating
that your product can be used with another product. I can in fact market
car shades that I say are "intended for use with the Honda Accord",
because I'm in no way diluting the Hond Accord Mark. Similarly, a
RoleAids supplement does not dilute the Dungeons and Dragons mark as long
as it does not pretend to be an official, true Dungeons and Dragons
product.
It has nothing at all to do with the area of law governing use of
trademarks on unrelated products. A roleplaying adventure titled Dragons
and Dungeons would be shot down in a heartbeat.
>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.
These products always contain a disclaimer on the front or back cover
saying that use of the trademark Dungeons and Dragons is done without
permission from...
They also do not make use of the unique graphical logos of the D&D
product line.
I think they've covered any argument for confusion that you could try and
make in court.
>I think that the analogy with Microsoft Windows is flawed. Most consumers
>never buy Windows and have no commercial relationship with the "Windows"
>trademark.
When you buy a Windows computer, you are in fact paying money for the
Windows license.
>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.
Actually, they have a very strict policy involving use of the Windows 98
logo on any software product.
>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.
Which products do you feel tried to misrepresent themselves as being
products of TSR, Inc.? I own a numerous collection of non-TSR authored
game products, and I can't see any that could possibly be confused.
That's not to say they don't exist, but I sure haven't found any. The
RoleAid, Arduin, City-State, Grimtooth's, Kenzerco and All The World
Monsters products are all noticably not using the Dungeons and Dragons
logo, for example.
>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.
I think it's unethical for a company to try and compete by suing the
competition out of existance. I don't think it's unethical to make
compatible products that don't misrepresent themselves, though.
>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.
Mayfair products were more than reasonably compatible with TSR products;
they often exceeded them in quality.
>I hope this essay goes some distance towards addressing the confusion about
>this issue and clarifying my position.
>
>Thanks for listening.
Well, it explains your position, but it leaves me in disagreement both
with it and the legal precedents you raised.
--
Russ Taylor (http://www.cmc.net/~rtaylor/)
CMC Tech Support Manager
"He hates the cans! Stay away from the cans!" -- Navin Johnson
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