Is there any solid legal reason why third-party products can't or don't mention a WotC trademark like D&D, and instead say something like "the world's most popular fantasy game"? Doesn't Goodman Games just say straight out that their stuff is compatible with DnD 4e, without a licence?
Quote from: The_Shadow;326898Is there any solid legal reason why third-party products can't or don't mention a WotC trademark like D&D, and instead say something like "the world's most popular fantasy game"? Doesn't Goodman Games just say straight out that their stuff is compatible with DnD 4e, without a licence?
So does Kenzerco with their Kalamar setting book. They did it before with the original back in the 2e era as well. The only reason that companies don't usually do it is because of FUD.
Quote from: mhensley;326966So does Kenzerco with their Kalamar setting book. They did it before with the original back in the 2e era as well. The only reason that companies don't usually do it is because of FUD.
Yeah. This was one of the clever (I don't mean that snarkily) effects of the OGL -- by making it easy to jump through the hoop, WotC distracted people from the fact that you don't /have/ to go through the hoop.
Quote from: The_Shadow;326898Is there any solid legal reason why third-party products can't or don't mention a WotC trademark like D&D, and instead say something like "the world's most popular fantasy game"? Doesn't Goodman Games just say straight out that their stuff is compatible with DnD 4e, without a licence?
I believe (not positive) that nowadays Goodman uses the GSL.
As to your question, if you use the OGL, you can't claim direct compatibility.
Otherwise, apart from figuring out where the exact line is between rightful compatibility claims and copyright or trademark infringement, is the pain in the neck of having internet commentators questioning the legitimacy of claiming that compatibility.
There are some releases openly proclaiming compatibility, notably Guy Fullerton's Fane of the Poisoned Prophecies.
Quote from: The_Shadow;326898Is there any solid legal reason why third-party products can't or don't mention a WotC trademark like D&D, and instead say something like "the world's most popular fantasy game"? Doesn't Goodman Games just say straight out that their stuff is compatible with DnD 4e, without a licence?
The OGL precludes claiming compatibility if you use it.
The main problem is that the law protects brands and what is called trade dress. You are not allowed to pretend to be somebody else product in the United States.
Goodman Games uses the OGL so right away they can't claim compatibility.
If for some reason they didn't use the OGL the combination of the using the old module cover look and compatible with D&D may been enough to have Wizards come down on them. If they just used one or the other then probably not.
As for my personal I blogged about here (http://batintheattic.blogspot.com/2009/08/open-gaming-and-osr.html).
But like a lot of my posts it is a bit long so here is a summary.
- Publishing compatible game products is risky
- D&D is not our brand to use for commercial gain. Because it represent other people's work and money.
- The OGL and the D20 SRD give permission for 90% of the things we need for older editions.
- Wizards show extreme generosity in doing this and it is fair to return that generosity by abiding by the OGL.
- Retro-clone and support products are OK when released under the OGL.
- The OGL protects your unique bits through declaring it as product identity.
- If a product has no stats, lite stats or no rules, have this argument doesn't apply
Let's get the elephant out of the room first, shall we??
You CAN claim compatibility. That's what OSRIC, S&W, and LL are for.
The people writing material with vague or all-encompassing (all retro-clones) compatibility statements are largely the same people who had absolutely nothing to do with old-school D&D before it became an online fad. They didn't contribute to the process of writing any of the retro-clones - but jumped on that bandwagon for profit and self-promotion. In other words, they won't shit OR get off the pot.
Quote from: Kellri;327296You CAN claim compatibility. That's what OSRIC, S&W, and LL are for.
.
You can't claim compatibilty with ANYTHING and use S&W, LL, and OSRIC.
The three have separate license for each of their trademarks thus conforming with the requirements of the Open Game License.
Quote7. Use of Product Identity: You agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing Open Game Content except as expressly licensed in another, independent Agreement with the owner of such Trademark or Registered Trademark. The use of any Product Identity in Open Game Content does not constitute a challenge to the ownership of that Product Identity. The owner of any Product Identity used in Open Game Content shall retain all rights, title and interest in and to that Product Identity.
And yes this means giving up a right you have. Which is why Wizards put it in there in the first place. They are OK with you using the rules as you see fit but they want to lock down the use of the D&D trademark. Which by the example of 4e is where the money is.
And this annoy a fair amount of people.
I fully expect 5e to be like 4e in being D&D in name only. Which is why it would be far better for Old School gaming to make the market aware of the original rules under new names like Basic Fantasy, Labyrinth Lord, OSRIC, and so on. That way there is no confusion as what a person is buying.
You cannot claim compatibility but a number of publishers try to make it clear what you are buying ala
(http://www.hinterwelt.com/images/OGL.gif)
QuoteYou can't claim compatibilty with ANYTHING and use S&W, LL, and OSRIC.
Don't be dense. You can say 'Compatible with OSRIC' or 'Compatible with Labyrinth Lord' or 'Compatible with S&W'. You just can't say 'compatible with D&D'.
I find these debates fascinating. Not only do they bring up interesting legal issues, but philosophical ones as well.
Regarding Kenzer and Company's use of the D&D trademark with their 3e stuff: It was a concession made by Wizards as the result of legal action over Knights of the Dinner Table strips republished without permission.
Quote from: The_Shadow;326898Is there any solid legal reason why third-party products can't or don't mention a WotC trademark like D&D, and instead say something like "the world's most popular fantasy game"? Doesn't Goodman Games just say straight out that their stuff is compatible with DnD 4e, without a licence?
I believe that the reason is widespread misunderstanding of how the law works.
It seems to be a very well-established principle that you can use otherwise protected names (but not logos) for this reason.
See http://en.wikipedia.org/wiki/Nominative_use
"The nominative use test essentially states that one party may use or refer to the trademark of another if:
1. The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute)
2. The user only uses so much of the mark as is necessary for the identification (e.g. the words but not the font or symbol)
3. The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial, and the same test applies for metatags."
Quote from: Christian;327310Regarding Kenzer and Company's use of the D&D trademark with their 3e stuff: It was a concession made by Wizards as the result of legal action over Knights of the Dinner Table strips republished without permission.
That is what they a call a stroke of good fortune for KenzerCo. But don't forget KenzerCo did stuff prior to that and afterwards (4e Kalamar). The reason David Kenzer who is a bona fide intellectual property lawyer. So has some experience in knowing where that gray line is.
Quote from: Age of Fable;327314It seems to be a very well-established principle that you can use otherwise protected names (but not logos) for this reason.
See http://en.wikipedia.org/wiki/Nominative_use
Note that is only in the US Ninth Circuit which covers the US West Coast. So if you get sued in say New York you may have a different outcome. In which case the Supreme Court will get involved and settle the matter so it is consistent among a US Jurisdictions. This is why you see the advice of "Get a lawyer" repeated so often. And why many of the retro-clone used the OGL and got lawyers involved (in the case of OSRIC).
Having the OGL on your side means that Wizards has to prove that you are violating the agreement, going the other route means YOU have to prove that you are not infringing. Plus the former involves contracts and licenses which is a an area of law that fairly straightforward. The latter is still evolving as the courts and legislature are catching up.
If you are writing RPG materials which one are you going to stake your
livelihood on?
If you don't believe me ask a lawyer. It what I did. When I showed the OGL (during the course of dealing with my NERO LARP chapter) he pointed out what rights I would be surrendering. His overall view was it was generous considering the value of the D&D rules. Although he didn't quite grasp implication of Open Content vs Product Identity. At the time I didn't either. His major beef, which is true of most dealing with Open Source stuff for the first time, was that you would forced to let everybody copy your stuff.
As we since seen that not the cast. Some publishers managed making using their open content quite painful (Tome of Horrors, Necromancer Games) and others quite easy (Expeditious Retreat Press). If you want see the horror that Necromancer Game created look at OSRIC Section 15. And understand if you use stuff from OSRIC your section 15 has to copy EVERYTHING from their section 15.
Quote from: Kellri;327308Don't be dense. You can say 'Compatible with OSRIC' or 'Compatible with Labyrinth Lord' or 'Compatible with S&W'. You just can't say 'compatible with D&D'.
It is pretty damn clear
QuoteYou agree not to Use any Product Identity, including as an indication as to compatibility, except as expressly licensed in another, independent Agreement with the owner of each element of that Product Identity. You agree not to indicate compatibility or co-adaptability with any Trademark or Registered Trademark in conjunction with a work containing
The three retro clones you mentioned have licenses to allow the use of their respective trademarks.
OSRIC
http://www.knights-n-knaves.com/osric/s1.html
Swords and Wizardry
Page 111 of the PDF
http://www.lulu.com/content/e-book/swords_wizardry_core_rules_%28pdf%29/6374501
Labyrinth Lord
http://www.goblinoidgames.com/ll_license1.zip
The reason that it is so fiddly that trademark law require you to be a dick about people using them or you lose all rights. Even Linus Torvalds of Linux had to be a dick about people using the Linux trademark despite getting it to keep it out of the hands of jackass companies who use it as a bludgeon against the Linux community.
Quote from: Age of Fable;327314I believe that the reason is widespread misunderstanding of how the law works.
No, it's because nobody wants to bet their fucking house on the law not only working properly, but working so well that you get your money back after a lawsuit from a company with more money to throw at it than you.
For all those listening in and wonder why any of this has to be explained and why it is so fiddly. The situation is similar to the initiative rules for AD&D. Until ADDICT (http://www.dragonsfoot.org/fe/index.shtml#263) came 20 year later nobody really knew what hell Gygax was talking about and just did their own thing (ironically including Gygax himself). Thanks to ADDICT we have a better idea of what Gygax was trying to do and can make a more informed decision about how to run initiative in AD&D.
So I hope because of my posts that you are more informed about your choices in publishing for older editions whether you decide to use the OGL or not.
Rob Conley
P.S. If you going to debate AD&D's initiative rules and ADDICT for the love of god make a separate thread. Otherwise we will have to make SAN rolls. %)
Quote from: shooting_dice;327321No, it's because nobody wants to bet their fucking house on the law not only working properly, but working so well that you get your money back after a lawsuit from a company with more money to throw at it than you.
I suspect that "Wizards will sue you regardless of the merits of the case, and you'll go broke defending it" is one of those things that "everyone knows."
I think it has more to do with the fact that many Game Designers aren't lawyers and don't have the money to have a full-time legal staff to consult with.
K&Co is different in that regard...
Quote from: Age of Fable;327514I suspect that "Wizards will sue you regardless of the merits of the case, and you'll go broke defending it" is one of those things that "everyone knows."
It's more that there's a chance that Hasbro, which has a history of this kind of litigation, might do so. Even a minuscule chance of being taken to the cleaners win or lose, is enough, and there have been previous actions that have ended on just that basis (White Wolf vs. Camarilla, which was won with a change of vanue that made it impossible for the Camarilla NPO to afford to show up in a Georgia court room - the fact that the NPO was kin of full of shit, while true, ended up not being taken to court at all).
Hasbro is known for making very broad claims of infringement. For instance, they claimed that Lexulous/Scrabulous was a copyright violation as well as a trademark violation even though the former was probably a nonsense argument (name, trade dress and confusion issues re: trademark are a bit less clear).
This set a very destructive informal precedent because Lexulous changed core game values, possibly as the result of a confidential settlement. Despite US copyright laws specifically not applying to game rules, Hasbro may bullied the company into changing them anyway, which is consistent with an evolving position on the part of these companies that rules "values" are akin to programming code and merit protection. Ryan Dancey has alluded to this position in commentary about OSRIC (http://www.enworld.org/forum/general-rpg-discussion/201334-ryan-dancey-answers-open-gaming-license-questions.html).
Now companies *have* occasionally declared compatibility or avoided an open licensing scheme. They've generally has legal expertise and/or obscurity on their side (see Technomancer Press, which produced 3e compatible material without using a license). But most small press companies don't want the risk, especially since explicitly declaring compatibility won't get them much more business anyway -- they know their target audience knows what they mean anyway.
In short, there's more to it that "HUR COMPANIEZ KNO LESS THAN MI." Of course, if you'd like to offer to pay a reasonably successful company's legal fees in exchange for them busting out with nominative use, go for it. You're willing to put your money where your mouth is, aren't you?
Quote from: greylond;327518I think it has more to do with the fact that many Game Designers aren't lawyers and don't have the money to have a full-time legal staff to consult with.
K&Co is different in that regard...
Ding! Ding! That's the winner. Instead they consult the Internet, never a good way to get reliable legal advice.
You don't need a fulltime lawyer to get this question answered, but it will likely cost you $20K to get a good legal analysis from a top tier firm. I'm not talking local attorney here but places like, Wilmer, McCarter, Morgan Lewis, Jones Day, Finnegan, Gowlings, Latham....firms of that caliber.
Or if you just happen to know a Harvard Law Graduate who just happens to have Real World IP&Contract Law Experience(case history study and work experience) AND knows what Big Corporate Firms really are or aren't capable of...
Case in point, Dave Kenzer. ;) When he says what the working Definition of "Nominative Use" is and what can and can't be done with it, I tend to listen to him over anyone else in the Gaming Industry, not just because of his degree or his research but because he's worked that side of the law for many years now. Kinda how like I'm going to listen to my Dad's oncologist about Lung Cancer...
Anyone and everyone else around gaming sites that offer an opinion, not so much...
Simplest answer to the OP?
Because they can sell more game books that way.
I should know - that little phrase has helped me sell plenty of non-Wotc D&D compatible books over the past 6 years.
If a publisher wants to avoid legal sillieness they just "World's Most popular Game system" or "World's Most popular Rome Playing Game" on there - and it well sell.
Especially those map sheet and map tile products that PAIZO makes. Those do pretty good.
- Ed C.
Quote from: shooting_dice;327565In short, there's more to it that "HUR COMPANIEZ KNO LESS THAN MI." Of course, if you'd like to offer to pay a reasonably successful company's legal fees in exchange for them busting out with nominative use, go for it. You're willing to put your money where your mouth is, aren't you?
Kenzer & Co - in exchange for 20% of the profits from Kingdoms of Kalamar and products with a similar statement of compatability, I offer to pay all your legal fees relating to Wizards of the Coast suing you on the grounds that that statement of compatability is copyright infringement.
I can pay in American dollars, Confederate dollars, Galactic Federation credits, or free legal consultations with the role-playing forum of your choice.
Quote from: Age of Fable;328037Kenzer & Co - in exchange for 20% of the profits from Kingdoms of Kalamar and products with a similar statement of compatability, I offer to pay all your legal fees relating to Wizards of the Coast suing you on the grounds that that statement of compatability is copyright infringement.
LMAO! That's really funny! Something tells me that they have more than enough legal expertise in house... ;)
Legally, (if not using the OGL etc) you definitely can say "Compatible with D&D" under trade mark law. This is nominative/descriptive use of the mark, and permissable. You are best advised to also put "D&D is a mark owned by WoTC, used without permission", just in case anyone thinks "compatible with D&D" means "official/licensed product".
The purpose of a TM is to designate the origin of goods. It doesn't grant a monopoly on all uses of the mark.
Edit: I teach IP law in the UK to British and foreign future & current lawyers.
Edit2: It's not legally controversial that when selling Product A that's intended to be compatible with Product B, you are allowed to indicate compatibility. This applies to eg car spare parts, and also to computer software - you can put "For Windows Vista" or "For Mac" etc on the box.
If you want to prevent people selling compatible products, you need to use other rights, especially copyright. In the UK (dunno about US), printer manufacturers monopolise the sale of ink cartridges through copyright protection on the software in the cartridge. Games console manufacturers do something similar with game cartridges.
The equivalent with D&D would be reproduction of c-protectable elements, which include lengthy stat blocks, 'fluff text', and (in the US) derivative works. Eg an adventure set on Athas might infringe WoTC copyright in their Dark Sun works, just like a story set in George Lucas' Star Wars universe might do so. But this is a copyright issue, not TM. And even here it's not as clear cut as you might think.
Quote from: S'mon;328208The equivalent with D&D would be reproduction of c-protectable elements, which include lengthy stat blocks, 'fluff text', and (in the US) derivative works.
Whenever Ryan Dancey commented, this was the issue that he brought up. Releasing the D20 SRD under the OGL was designed to create a safe harbor for publishers in using protected elements.
But if you product doesn't have any stats or rules. Then the risk is probably near zero if you claim compatibility.