[again liberally snipped]
>This is not accurate. Just because someone claims something is a
>trademark does not mean it is a valid trademark under the law. In fact,
>just because someone registers a trademark with a governmental office does
>not guarantee a trademark is a legally valid trademark either. The
>proposed language does not protect such "frivolous trademarks" any more
>than the current law does, since they are not legally trademarks. The
>onus does not fall on the OGL author to get the trademark revoked, the
>onus still falls on the individual claiming the trademark to prove they
>possess a legal trademark.
I do not read the proposed language as: protection for registered
trademarks that are proven to be legal and not frivolous. I read
the proposed language as protection for trademarks. Whether these
trademarks are simply asserted, federally registered, frivolous,
or proven valid by many challenges in court is not clear and it
worries me. Your reading is different and I admit may be more
valid given your background. However, it does not reassure me
a bogus trademark cannot be used in conjunction with the new OGL
clause in legal action. I'm inclined to think that a company with
a bogus trademark and the OGL clause is much more likely to take
someone to court than a company with only a bogus trademark. And
anytime there is such a court case, the small time publisher or
individual is most likely going to throw in the towel.
>> some existing, possibly obscure, mythology
>
>CAN'T BE DONE!!!!!!! Where do you get the idea that anyone can go out and
>trademark something like this? They can trademark the a name from a
>mythology in reference to a product, but no one can trademark such a
>public domain entity.
Did. TSR claimed to have created Drow. TSR was asserting
trademark rights on Drow and telling people to stop using it
to refer to an elf. You and I might now think of this as a
totally bogus trademark. TSR and their lawyers did not.
Consider if Drow the Scottish mythological elf was too obscure
to merit an entry in a readily accessible dictionary. A court
might be inclined to agree with TSR and we might all be prevented
from using such a public domain entity until someone can find some
proof (even if we remember Drow from before TSR's time, it doesn't
mean we can find proof).
The new clause provides a powerful additional claim which adds
to the likelihood some company like TSR would engage and be
successful in a lawsuit. Thank you for reassuring me that a
bogus trademark would be found out and I would receive punitive
damages in a lawsuit. I am not so confident.
>> The proposed clause is bad because it does not serve the people
>> who do not want additional trademark protections in open gaming.
>
>And why do this people get special consideration? As oppposed to those
>people who intend to create campaign worlds under the OGL and wish to
>trademark their creations? I'm sorry, but you've essentially put people I
>consider the least deserve of special consideration at the apex of
>consideration and said that people who create IP and wish to protect their
>IP deserve less consideration. If that's your argument, you and I'll will
>NEVER be in agreement on this issue.
Woah, you are totally ignoring my example. These people are
creating campaign worlds under the OGL and wish to contribute
some MORE. If they weren't participating in such a way, the
new clause wouldn't be an issue.
How does your merit of consideration rank the following:
1) people who contributed to the OGL and want to contribute more
but are prevented because of the proliferation of trademarks in
their favorite settings
2) people who used open content but didn't contribute anything new
and want extra protection for a trademark
The new clause serves 2) but does not serve 1). The new clause
specifically prevents material from being contributed to open
gaming. It may be for a good reason or it may be simply someone
is brandishing a bogus trademark with the new clause. Which it
is often depends on which side you ask.
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