From: "Justin Bacon" <[EMAIL PROTECTED]>
> For example, let's say that PEG publishes OGC for DEADLANDS, and
identifies
> "DEADLANDS" as PI.
Check.
> I write a derivative product, and reference PEG's HELL ON EARTH.
If you indicate compatibility or co-adaptabilty, you're breaching the OGL.
You may also be improperly using PEG's trademarks, but that's an issue
outside the scope of this disucssion.
> Later, PEG publishes OGC for HELL ON EARTH and identified "HELL ON EARTH"
> as PI.
Check.
> Am I now in violation of the OGL?
Maybe. "Hell on Earth" is a good example of a bad thing to try and protect
with the OGL Product Identity clause.
Let's say that in your content, you did not indicate compatibility or
co-adaptibility with Hell on Earth, thus removing the threat of a Section 7
breach. PEG, if they sought to claim breach, would then look to the
COPYRIGHT NOTICE section of the OGL included with your product. If the
disputed mark does not appear as Product Identity in any of the works cited
as the ancestors of your OGC, then PEG does not have a claim - with one
exception.
If PEG can show that you did use some other OGL'd source in your work, that
did include the Hell on Earth Product Identity, you'll be in breach of the
OGL, provided that your use of the Hell on Earth Product Identity extended
to something more protectable than just those three words.
Let's imagine a third case, where Ryanco Games publishes some OGC, and uses
the three words "Hell on Earth" without claiming that it is Product
Identity - essentially representing to you (and all future users of its OGC)
that it has the "right to contribute" "Hell on Earth" for use by others.
PEG comes along at some future point and tries to assert a trademark
interest in Hell on Earth, or a Product Identity claim to Hell on Earth.
PEG will have to show that it does in fact have a valid trademark to those
words, and that it has a Product Identity claim that can be traced directly
to your use of the term in your OGC. If all that is in dispute are the
words "Hell on Earth", PEG doesn't have much of a case. If, however,
there's more to the matter, such as material clearly derived from the Hell
on Earth concepts embodied in PEG's works, they may have an OGL breach
claim, a trademark infringment claim, and a copyright infringement claim.
"Hell on Earth" is nearly unprotectable because it is a common-usage term.
A specific logo could be associated with a "Hell on Earth" trademark, and a
copyright interest might be built around a "Hell on Earth" property, but the
three words by themselves are essentially public domain. Contrast that with
"Dungeons & Dragons", which has a clear, registered trademark, was never a
construction used in common usage prior to the appearance of the trademark,
and you can see the difference.
This is the same reason that I could use a character named "Thor" in an
adventure, even if one of the ancestor sources used in my OGC had a
character named "Thor" that was identified as Product Identity - because I
can cite a derivation for that name that lies outside the scope of Product
Identity, and establish a second, clear route for my use of the term. I
could not, however, get away with a character named "Drizzt Do'Urden",
because that name exists nowhere outside of the WotC copyright and trademark
interests, and even if a 3rd party had attempted to introduce it as OGC or
Product Identity, that 3rd party would not have had the authority to
contribute it, and thus neither they, nor I, could establish a right to use
the name that wouldn't be infringing.
> > To be clear, you are in breach. The question becomes, "can anyone sue".
> > The ability of someone to sue is linked to their ability to show that
your
> > breach of the agreement actually caused them damage.
>
> So I *am* in breach if I use someone else's trademarks, regardless of
whether
> they've published OGC or not?
You are in breach if you indicate compatibility or co-adaptability.
Ryan
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