[Alec said]
>Well written summary of the "trademark" issues snipped. I think Faust did
>a good job laying this out. It's not what I'm responding to, but just so
>no one thinks I'm "attacking" Faust, I wanted to make this clear.
Thank you. I thought all of our discussions up to now had given me a pretty
good grasp of the considerations and of everybody's feelings.
> > There is still a (small but silent) paranoia contingent that tries to
>"look
> > behind" the ramifications of the OGL and hypothesizes what the "giant
> > corporation" could do with it. The only major objection I have heard
>from
> > this quarter is that for the first time under the OGL's particular rules
>the
> > "giant corporation" could use selective enforcement of trademark laws to
> > punish those they don't like for minor trademark transgressions, while
> > rewarding their buddies by overlooking similar small transgressions.
>
>The problem with this paranoia contingent that Faust refers to is that
>they have no understanding of trademark law. You can't "selectively"
>enforce a trademark through court action. Failure to go after some while
>suing others can be used as evidence that the trademark holder is not
>defending said trademark and therefore has lost their trademark rights.
>Trademark law requires the vigorous defense of your trademark and the OGL
>language does nothing to change this.
As it has been explained to me (by someone who should know) you are simply
incorrect, because under the OGL it is no longer a matter of trademark law,
but a matter of a contractual relationship. Trademark law no longer applies
to the degree to which you seem to believe it does, within the context of
the contract, because the contract provides specifically waivers for the
possibility of an unitended use of a trademark. Here is the logic:
1. The OGL and its tenants represent a contract between the trademark
holder and the user of the OGL content. <undisputed>
2. One of the tenents of this contract is that: "The use of any Trademark in
Open Game Content does not constitute a challenge to the ownership of that
Trademark." <undisputed>
3. A further tenant of this contract is: "You agree not to use any
contributors trademarks." <undisputed>
4. An implicit tenant of this contract is: "It is the trademark holders'
responsibility to enforce this", but #1 means enforcement does not have to
be rigorous or total. <undisputed>
OPINION: The issue which the OGL sets up is *identical* in almost all
respects to the "Mayfair vs TSR" court case that we talked about so long
ago, with the exception that IN THIS CONTRACT, >NO USE< of the trademark is
allowed for advertizing purposes.
Any lawsuit would be for violation of contract, and would probably be
pursued to deny the offender the right to use the open content.
The trademarks holders' trademark will never be threatened by allowing use,
because of the contractual nature of the relationship to the user of the
Open Material and the tenant of that contract in #2 above.
At least this is the way it was explained to me...
Faust
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