It doesn't really matter if a 3rd party uses the term descriptively; it matters if a commercial publisher does. And it doesn't matter if the term is used as a reference, it matters if it is used as a descriptive mark designed to attach a connection between a good or service and the mark itself.
The GDW house system was often referred to in their own products as "the d20 System", but I've never found any GDW branding efforts based on the term (though I could make the case that I have such literature building a brand around "GDW House System"), and that material is no longer commercially distributed by the publisher anyway. They're the only significant publisher I found who used the term in commerce as a descriptive mark, rather than as a shorthand reference. I doubt anyone is going to find any relevant trademark usages of "d20 System" for RPGs. There's certainly nothing like the branding campaign that WotC has engaged in to drive awareness of the "d20 System" trademark. Let me give you an example. Let's say that I produce a computer that happens to have an orange case. For several years, a small number of people use "Orange" as a slang term to refer to my RyanCo Datamaster 5600 computer. However, my trademark is on "RyanCo Datamaster", and I don't assert any trademark of "Orange". In other words, I never actively attempt to get consumers to identify the "Orange" name with my products or services. You decide that you're going to produce a new computer, and call it the "Orange". You create a branding campaign that raises the awareness in the general public that "Orange" means the computers made by Cadenhead Computer, Inc. You then assert a trademark for "Orange" and proceed with an attempt to register that mark. What happens? Well, some people who are fans of the RyanCo Datamaster 5600 might feel that their "pet name" has been appropriated by the faceless corporate drones at Cadenhead Computer. They could object to the registration on the basis that they believe there are enough consumers who use "Orange" as a synonym for "RyanCo Datamaster 5600" to constitute a material number of consumers who might be harmed by the successful registration of "Orange" by Cadenhead. To make that determination, the USPTO would look at the total number of consumers in the targeted market, and compare the number of people likely to be materially harmed, and then decide if there are enough such individuals. My valient lawyers may believe that despite my stupidity in not asserting a trademark on "Orange" long ago when they advised me to do so, and desipte the fact that I failed to attempt to quash any use of "Orange" as it related to any other computer product (also as they advised me to do), I may still be able to assert a prior trademark claim on "Orange", or at least throw so much doubt and confusion into the process that the USPTO decides the mark has entered common usage as a generic synonym for computers (or perhaps just computers with orange cases) and stop the registration. To acheive either of those goals, I have to prove that there's a material number of consumers who might be harmed by the successful registration by Cadenhead Computer, which essentially puts me in the same basket as the fan protest above. In either event, registration is unlikely to be denied, unless there really are a whole lot of consumers who use "Orange" as a synonym for my product (or computers in general). [if you replace "cell phone services" with "computers" in the example above, and switch the venue to the UK, you have a real-world example, btw.] In the case of RPGs, I don't believe that any significant publisher can come forward and assert a prior commerical use of "d20 System" as a trademark, I know that no publisher asserted a registration for "d20 System", and I do not believe that any materially large number of consumers use the term "d20 System" as a synonym for any specific product 3rd party, nor do I believe that any number of consumers use "d20 System" as a generic synonym for "roleplaying game". So I think the registration will be granted. Ryan _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
