Ryan,
Thank you. I'll echo that your frankness and willingness to
share information in a timely manner is very much appreciated.
I sympathize with your position and think your reasoning fair.
If I was a brand manager, I would feel the same way. But I am not.
I urge you to consider the benefits of the final clause against
the cost of adding such a clause to the OGL. Aside from other
issues already brought up, I suspect the new clause would add
to the Lawyer Quotient (LQ) of the OGL. In this particular case,
LQ = "likelihood someone will need a lawyer to navigate the clause
and negotiate any permissions they require"
+
1000 * "likelihood someone will use the new clause in legal
action that you would not want to see happen"
In the thread, "Re: [Open_Gaming] Some license updates" you posted
a clear statement about the OGL and the concept of a "safe harbor".
I fear some people have gotten from this message that the new clause
reduces the likelihood they will be sued. Maybe in some indirect
way that would happen. But adding to the safe harbor was not
relevant to the new clause as far as I understood. I urge you
to clarify this so that people may support or not support the new
clause for the right reasons (or to clarify my misunderstanding).
I'd like to reiterate that I believe your position is clear
and reasonable. To add some food for thought, I'd like to
comment directly on your essay. Please take the next few
comments as exploring a different perspective, not necessarily
mine. Further, any strong language or hyperhole is shot from
the hip (don't take it so seriously). If anything, you might
be able to strengthen future essays of this sort from these
comments.
>For 99% of the goods in the world, the application of the trademark laws are
[snip]
>In our little corner of the commercial universe, we have an odd situation.
[snip]
Disagree. Ford does want to sell you a new + more expensive vehicle
every two years. The number of repeat customers of Ford is probably
much higher than repeat customers of RPG materials. Similarly,
with many other industries. Claiming special industry status
seems like a far stretch.
>You can (by court precedent) make a floor mat, put the Ford logo on it, and
[snip]
Agree to an extent but you've cast the floormat manufacturer in
a bad light. They are probably making floormats with Ford, Chevy,
Chrysler, etc logos to serve a consumer demand without harming the
auto manufacturers involved.
>I am forced to admit that a court did so rule, and so therefore
>the law does allow this type of use.
Disagreeing with someone elses fair use, when your company
depends on fair use in other situations is...[fill in the blank].
>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.
Even if WotC plans to produce or sell the right to produce an
official line of dice / miniature figures for use with D&D?
You might not want to further your position by making statements
that you can be held to later.
>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.
Agree.
>I think that the analogy with Microsoft Windows is flawed. Most consumers
[snip]
I didn't follow the Microsoft thread so don't have any comments there.
[snip]
>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
What happens to the avid gamer? The guy who writes an OGL module
and puts it up on his website for free download. Are you unleashing
another TSR on them? Companies have shown a tendency to overreach
their rights and you are adding fuel to the fire.
[snip]
[Okay remember this is "exploring a different perspective."
Some people will be offended but I think some with an
open mind might agree. I've got enough unpopular opinions
on my plate and haven't thought about this one enough to
take the heat for it.]
One reason why RPG companies are always sueing each other
is that you respond to problems by putting up legal fences.
Of course, someone is eventually going to jump the fence.
You didn't fix the problem you contained it for a while.
The result is either a lawsuit or extreme bitterness by the
people who didn't have the balls or funds to go to court.
You might be better served by doing something positive first
before trying the legal fences. In this particular instance,
build significant value into the D20 trademark so that people
don't have so much incentive to latch onto your other trademarks.
Everything else handle on a case by case basis. You still have
the trademark laws to resort to if communication doesn't work.
Remember you're still a gorilla playing with butterflies.
With regards to your concern for other companies that become
successful, they are successful! Let them take care of
themselves instead of giving them ammunition against other
companies which may or may not be successful. Heck what
you might end up doing is giving all the successful companies
incentive and ammunition to sue each other out of business.
Lastly, it seems quite hypocritical to mandate everyone ask for
permission in light of WotC's history on the Palladium issue.
And saying "we made that mistake and don't want you to do it"
would not sound very sincere since the main purpose is to
protect valuable trademarks.
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