On Fri, 15 Dec 2000, Justin Bacon wrote:
> lizard wrote:
>
> > This part:
> > "7. Use of Product Identity: You agree not to Use any Product Identity,
SNIPPED
> > "Product Identity" includes trademarks. You may not use ANY product
> > identity without permission of the owners of that PI. This means, yes,
> > you cannot say, "This NPC drinks Pepsi" in a product released under the
> > OGL, unless, of course, you have permission from Pepsi.
> >
>
> I'm guessing, though, that Pepsi hasn't released any OGC for me to use -- so I'm
>still
> not seeing where the general "no trademarks allowed" thing is coming from.
It's not there. The WotC lawyers did a great job of fixing this issue to
make the trademark language in the OGL only apply to OGC material and most
people have simply not noticed or understood this change and still are
operating under early understandings and language. [Which given the
highly legal & technical language usage involved in resolving the issue is
perfectly understandable.]
However, your use of Pepsi is only protected under fair use if you are
also willing and able to defend yourself in court if Pepsi doesn't like
how you've used their trademark and decides to sue you. The type of use
you've described is NOT EXPLICITLY permitted as fair use under the
copyright. It is only permissible as long as it does not dilute the
trademark - and whether or not your use dilutes the marks is a matter for
the a court to decide (on a case by case basis). If a trademark holder
doesn't like the way you are using their trademark they can bring suit
claiming dilution and if you can't afford to defend yourself, it really
does not matter if they are correct about the issue of dilution
In your example you are mostly likely fine, as Pepsi is unlikely to even
know about the use. However, Ryan has pointed out how some Arms
Manufacturers were not happy about WotC using their trademarks in the Arms
& Equipment Guide for the Dark Matter setting of the Alternity Game.
WotC/Hasbro (can't remember if the Hasbro purchase had occurred yet)
wasn't willing to fight the matter in court and simply went with generic,
non-trademark names for weapons. This seems a pretty straight forward
case of fair use to most people and WotC obviously has more resources than
most people on this list who intend to publish under the OGL. So realize
that any time you use someone's trademark you are opening yourself up to
the possibility of a lawsuit and a ridiculous lawsuit has serious costs.
alec
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