On Thu, 10 Aug 2000, Kal Lin wrote:
> Am I correct to understand that the answer to my query:
>
> > Do you think it is right to arbitrarily strengthen the
> > trademark owners side in every case?
>
> Is:
>
> > Kal, since most of the examples you provide where you claim someone is
> > using a trademark to stop someones publishing OGL material are really
> > copyright issues, we are going to disagree on the likelihood of such
> > cases.
>
> Not yes or no but these cases are not likely so let's make
> it cheaper and easier for trademark owners to win a case?
Since there is no logical connection between the statements above, of
course you are not correct in assuming that the final statement is my
answer to the question.
In another message:
>> > -How hard is that if the OGL Author can't dig up any solid
>> > evidence against TSR's claims?
>>
>> If they can't, and it's a registered trademark, they will lose, OGL or
>> no OGL.
> And there is a decent chance they wouldn't even be in court
> if the new clause OGL didn't reduce the costs and burden of
> proof on TSR in such a case.
No, given the scenario _you_ described this is not true. You specifically
stated that the OGL owner had no evidence of the prexistence of the
trademark term. If that is the factual situation we are operating under
(not the real case of Drow and the fact that it's known Drow was a term
prior to TSR use), there is not a decent chance the case wouldn't be in
court under both trademark and copyright laws. The burden of prood under
your scenario doesn't lie with WotC (why do you keep using TSR?) under
trademark law today, it lies with the OGL user of the WotC's trademark.
I've been asked to end this pointless discussion and will do so now. The
OGL clause and trademark law don't operate in the manner that Kal has
asserted. If you believe they do, I suggest you follow his advice and
publish under the GDFL - you'll end up in court all the same.
later,
alec
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