On Wed, 9 Aug 2000, Alec A. Burkhardt wrote:
>The new clause does little to change current behavior. Just because the
>clause would give trademark holders a powerful claim, there is absolutely
>no evidence that any trademark holder would use that power except for
>where they feel their trademark is being devalued. Since they could sue
>in such a case without the clause, I don't see the clause changing actual
>behavior in the instance you are referring to.
Disagree. Such a powerful claim adds to the likelihood that trademark
holders will be successful in court. That increased chance of success
would certainly change the behavior of some trademark holders who want
to aggressively protect their trademarks. If a trademark holder feels
their mark is being devalued, it does not mean it actually is. I feel
that's an argument for courts and the trademark precedents to decide
not for the OGL to say: doesn't matter; don't use it.
>Smith&Wesson isn't likely
>to waste money to stop someone from simply referring to their products;
IIRC, Ryan mentioned firearms manufacturers were wasting money
by having their lawyers tell WotC not to use their trademarks in
Armed and Dangerous.
>anyone who feels such a passing reference to their trademarked hero
>infringes on their product can sue currently.
And they would be more likely to sue if they had a powerful claim
to increase the chance of successful litigation. You seem to hold
the opinion that the new clause is benign because companies can
already sue. I strongly disagree because the new clause provides
a powerful claim and increases the likelihood that a trademark holder
will take legal action. Without the new clause, trademark holders
will pick battles on more solid ground instead of a shaky passing
reference.
[liberal snipping for brevity from here on, if I missed a point
apologies and feel free to readdress]
>Here's the biggest issue I have with Kal's examples - he keeps using what
>is a highly questionable term for a valid trademark "Snakemen". Even
>assuming one could be granted a trademark of such a term, if you read the
>U.S. Patent & Trademark Offices information, you'll see that being awarded
>a trademark does not guarantee that your trademark will be valid upon all
>atttempts to enforce it. Using such a generic term as "Snakemen" is one
>of those instances where it is quite possible that even a registered
>trademark will not be upheld by the courts.
A main goal of the new clause is to bypass the trademark laws.
If someone were to obtain a trademark on "Snakemen" (or even to
simply assert the claim since we haven't got a clear answer to
that) then it doesn't matter if the trademark office and courts
are willing to support it when challenged. It's a trademark by
definition (granted not a strong one if challenged). The new
clause protects frivolous trademarks as much as it protects
strong trademarks. OGL authors would be barred from using
these frivolous trademarks unless they are willing to go to
court and have that frivolous trademark revoked. The onus falls
on the OGL authors to get that trademark revoked, when previously
the onus falls on trademark owners to convince the courts
enforcement is appropriate.
>And if you change Kal's
>trademark to something more specific than "Snakemen" such as "Slithr'sss",
>the example falls apart as it's 1)highly unlikely that independent people
>will create such conflicting trademarks & 2)if they do this is exactly
>what trademark law is suppose to protect, meaning that the new clause
>doesn't change behavior.
"Snakemen" and "Slithr'sss" may be on different ends of a scale.
There are many cases in the middle and I do not want to argue
on how likely it is 1) to obtain a trademark on a particular case
or 2) for two people independently to realize such a situation.
Note that in my example only the mean and evil Snakemen wants to
be trademarked. Because they see the cute and cuddly Snakemen
as a problem, they exercise the new OGL clause when they may
have little or no chance in a trademark infringement case.
>> A third problem is companies asserting/obtaining a trademark
>> on something that many people feel they should be allowed to
>> use (and normally are allowed to use without the new clause).
>> Suppose someone trademarks a set of gods from some mythology
some existing, possibly obscure, mythology
>> because they have a series of modules on these gods. That
>> effectively takes those gods away from the rest of us.
>
>Could you provide a better example? The one you provides is invalid under
A real example is TSR's claim that "Drow were created by TSR."
Under the new clause, they could assert a trademark and prevent
anyone from using Drow in open gaming. Well before D&D was a
product, Drow was listed in Webster's unabridged 1970 as: A tiny
elf which lived in caves and forged magic metal work. Even if
I grant that TSR independently created Drow, the new OGL clause
prevents anyone from using the pre-existing term Drow because
they refer to the same thing.
Again OGL authors would have the onus placed on them to have
a court revoke such a trademark before they can use it freely.
See http://www.cs.ualberta.ca/~wade/HyperDnd/TSR/drow.html for
more details on this example.
I also do not think WotC will repeat the TSR history. But I
do not doubt someone else will come along and do something
similar, especially with the new clause as added ammunition.
>This one I just don't understand the logic of at all. The proposed clause
>is bad because it protects something that is valuable. It does nothing
The proposed clause is bad because it does not serve the people
who do not want additional trademark protections in open gaming.
>for those who have no interest in trademarks. Yet it could drive away
>people who want to use other people's trademarks. The people in your
It could drive away the people who want to contribute something
that they would want to continue contributing to regardless of
who starts asserting trademarks. Example: You contribute something
"foo" and I build on "foo" adding something that's a good fit "bar".
But I trademark "bar" and prevent you from adding on to "foobar".
You are stuck with just "foo" so you begin to think contributing
to the OGL wasn't so wise after all and tell your friends you got
ripped off by the OGL. I wish I could give you a more concrete
example but I cannot. I can only illustrate the reasoning since
I don't have any great gaming ideas to toss around the mailing list.
>all aspects of the OGL are going to relevant to everyone using the OGL;
>that's true with or without the proposed clause. The people in your
>second sentence are not negatively effected by the proposal. And you
>appear to have missed Ryan's message where he explained that the new
>clause does not change the fact that anyone who uses a trademark in open
>content is still opening up the use of that trademark.
I didn't missed that. Continuing the hypothetical example: "bar" was
never open content but "foobar" couldn't exist without you contributing
"foo." Before everyone jumps back on their moral high horse and say
"bar" is closed leave it alone. The point I am making is you having
contributed "foo" now regret doing that and is driven away. When
without the new clause, you would have been perfectly satisfied with
whatever the current laws allow you to use of "foobar."
Now even if one has the opinion that the current laws and the
new clause OGL allow the same amount of usage (ie. zero), you
are being driven away by the new powerful clause in the OGL not
by current laws. It would be easy and natural to choose not to
participate in the OGL anymore.
>No, under the reading you have given to trademark law and the proposed
>language, I can use the D20 logo under the OGL, without agreeing to the
>D20STL. All I have to do is say this product is compatible with D20.
Hmmm. There must be a misunderstanding here. I believe you can say
you are compatible with D20 but not use the logo. Usage of the logo
requires the D20STL. If you are referring to my statement in response
to Ryan's message about Ford's logo, I was working on the assumption
that Ryan is right about someone getting to use Ford's logo and
commented that there are probably Chevy floor mats too.
Are you also possibly implying that under a different reading to the
trademark law and the proposed language that such a point is valid?
Whether someone says "compatible with D&D" or "compatible with D20,"
I am satisfied to let the current law rule. If someone wants to
use the official D20 logo then they should have to enter into the
D20STL. If someone wants to use the official D&D logo (the red
fancy font with sword through the & symbol between the two words?)
then they should have to enter into an agreement with WotC. But I
disagree we should extend trademark protection to the level proposed
by the new clause.
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