On Thu, 10 Aug 2000, Kal Lin wrote:
>
> On Thu, 10 Aug 2000, Alec A. Burkhardt wrote:
>
> > Under both the new clause and current law, if you can show that a
> > trademark isn't valid you can't be stop from using the words you want to
>
> I think you have to make the incredible leap of faith that the
> following scenario is what I envision:
>
> TSR: "We created Drow and here is our trademark issued from the PTO."
> OGL Author: "I vehemently believe Drow to be in the public domain
> but can't remember where I saw it pre-TSR."
If this is the scenario you envision, the OGL author you've created
deserves to be stopped from their abusive use of a valid trademark.
Obviously the OGL author is in reality attempting to trade on WotC's
trademark an making a specious claim in an attempt to avoid being stopped.
And of course none of this is in any way impacted by the proposed
language. Where do you get the idea that under current law the OGL author
wouldn't have to prove the trademark is invalid? Without proving that
Drow meant something prior to TSR's use of the term, the scenario you
present is an obvious case of infringement of the trademark. It is also a
clear case of copyright violation as well.
> I thank you for raising two important issues:
>
> 1) the trademark holder has to prove they hold a valid trademark
>
> -How hard is that if the OGL Author can't dig up any solid
> evidence against TSR's claims?
If the OGL author can't dig up any solid evidence against WotC, what
business do they have attempting to use the trademark? If you can't show
that the trademark is invalid, you don't have any argument with regard to
your use of the trademark. That's current trademark law, not the proposed
clause of the OGL.
> 2) the trademark holder has to prove you are using their trademark
>
> -How difficult is that if TSR claims and the OGL authors concede
> both are using Drow to mean "a tiny elf which lived in caves and
> forged magic metal work."
Obviously that's not hard if the OGL author can't show that the
trademarked terms they want to use were in existence prior to the claiming
of the trademark by the trademark holder. Of course if the OGL author
can't show this evidence it's also blatantly obvious that the OGL author
is using the trademark improperly. By conceding they are using the term
to mean exactly the same thing and not being able to show that such an
understanding of the term is possible from somewhere other than (and prior
to) the trademark holders use of the term, the OGL author has admitted to
infringing on the trademark.
And again -- THE PROPOSAL DOESN'T EFFECT THE SCENARIO YOU'VE DESCRIBED!!
Current trademark law is going to be just as harsh to the individual
you've described as the OGL language will be.
later,
alec
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