[Alec Said]
>If you think someone
>doesn't have a right to trademark a terms, like say Snakemen because it is
>too generic or Thor because he is a Norse god, use the term and then
>defend yourself *if* someone is silly enough to attempt to claim you are
>using their trademark. The nice thing about this is 1) you're likely to
>win, 2) you're likely to be able to force them to pay your costs &
>3) you're even likely to be able to win punitive damages for their
>bringing such a suit against you.
Just an interjection here. Alec all your arguments assume the small company
has the money, cash flow, and chutzpa to go to court to defend themselves
against a 40 Billion Dollar a year corporation.
We under the OGL are going to be the smallest shoestring companies in a
market dominated by a giant. NONE of us will have anything like the cash
flow to even get close to a court of law against these guys. Something more
has to be on the line for the GIANT than just a little money for them to not
dominate the industry.
Something like a test case on a substantive trademark issue.
The main point that I think Kal is trying (rather bravely) to make is that
the clause in the OGL will provide another layer of lawsuits before the
GIANT gets close to a substantive trademark issue - something they might not
want defined.
Rather than suing under the trademark laws, the GIANT will first try to sue
for violation of the OGL. In your disussions, you need to maintain
awareness that (for all of us) any single lawsuit against the GIANT will
without a doubt put us out of business - win or lose.
BUT if it is a lawsuit involving a substantive trademark issue (such as
whether "Works with ..." is OK, then the GIANT might at least think twice
before pushing the issue to court.
Faust
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