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| #1gawain_viiiJan 10, 2006 10:15:58 | I have several questions on the subject of Copyright and Trademarks... As far as I can tell, Copyright is a protection of intellectual property, such as a original written work, but cannot include proper nouns, which are protected seperately by Trademarks. The use of TM is a "claim" of ownership, and it's use is goverened by state law, the use of (R) is a "registration" of ownership goverened by the federal government. source: US Patant and Trademark Office: uspto.gov Trademark terms I've located... Abandonment: A mark is considered abandoned when its use in commerce has been discontinued with intent not to resume such use. Duration of non-use depends on the individual country or jurisdiction. Assignments: Legal transfer of the ownership of property, including a mark, and all interests in it from the owner (“assignor”) to a third party (“assignee”). See Assignment in Gross; Naked Assignment. Cancellation: Extinguishing a trademark registration by a court or a trademark office. Grounds include: likelihood of confusion with a pre-existing mark; mere descriptiveness; the mark having become a generic term. (Note: all the above grounds listed remove any potential for protection.) souce: International Trademark Association: inta.org With that said, TSR, inc. Assigned 140 trademarks to Wizards of the Coast, inc. on 12/6/2000. (source: http://assignments.uspto.gov/assignments/q?db=tm&reel=2199&frame=0091&page=1 ) The following trademarks were abandoned by TSR and were never owned by WotC Ser # Mark Date 74528085 MYSTARA Oct 25, 94 74277626 HOLLOW WORLD Aug 3, 93 74277529 HOLLOW WORLD Jul 20, 93 74100675 HOLLOW WORLD Apr 16, 92 74100669 HOLLOW WORLD Mar 4, 92 74733623 SAVAGE COAST Jan 17, 97 74733617 SAVAGE COAST Jan 17, 97 The following Trademarks were "cancelled" by WotC. Ser # Reg. # Mark Date 74557507 1910027 MYSTARA July 20, 02 74356206 1874751 MYSTARA Jan 26, 02 74100668 1669570 HOLLOW WORLD Sep 28, 02 74557927 1910246 KARAMEIKOS Jul 20, 02 74663600 1958068 GLANTRI Nov 23, 02 source: USPTO Trademark Electronic Search System: http://tess2.uspto.gov/bin/gate.exe?f=tess&state=4p3lcd.12.1 It seems to me, that WotC still holds the copyright for the completed works (whose statute of limitations is the life of the original holder (TSR) plus 70 years), but use of the defunct trademarks is fair game. I may be wrong, as I'm not a lawyer by any means, but as far as I see it, the only way WotC can restrict our use of dead TMs in the guise of "Product Identity" is to actively use the trademarks themselves (which have a renewable lifespan of 6 years). If I am correct, this is a win-win situation for us... either WotC publishes new Mystara material (at least 1 publication every 5 years, at a minimum), or we're free to do with it as we please, as long as we don't re-create, copy, plagarize, paraphrase, etc. the original stuff. Stick to new material and we should be fine. Please, comment, feedback, anything... let me know if I'm blowing steam up my backside, or if I've hit a gold-mine. |
| #2eldersphinxJan 10, 2006 14:04:19 | Your understanding of copyright and trademark is essentially correct. The key is that the two are intended for very different purposes. Copyright protects content - it keeps other people from stealing the stuff you've written, slapping a different cover and title on it, and selling it as something they wrote themselves. Trademark protects brand - other people aren't supposed to be able to steal the reputation and expectations of quality you've built up behind a key title, attach it to their own poor-quality junk, and sell it as "Authentic High-Quality Product". So yeah, it's possible currently for any company on the planet to create a setting called "Mystara" or "Hollow World" without worrying about trademark infringement. Those brands are defunct. But the content, as you've noted, is still under copyright and probably will be that way forever (because if D&D ever passes into the public domain, Mickey will have been there for fifty years, and you can bet that Disney will never let that happen). Since we (I'm fairly sure, anyway) like Mystara for the existing material that was written by Moldvay, Mentzer, Allston, Heard and others, not because of the world title, copyright protection is the key thing here. It's pretty broad, pretty ironclad and - all in all - pretty equitable. It protects what we write from being republished by a game company out for a quick buck, after all. |
| #3johnbilesJan 10, 2006 14:35:06 | I have several questions on the subject of Copyright and Trademarks... Sort of. A trademark is a product identifier, which may include words beyond nouns. (Like trademarking 'The Real Thing' for Coca-Cola) The following trademarks were abandoned by TSR and were never owned by WotC Where did you find the info these were abandoned? The data page didn't seem to indicate anything like that. It seems to me, that WotC still holds the copyright for the completed works (whose statute of limitations is the life of the original holder (TSR) plus 70 years), but use of the defunct trademarks is fair game. Yes, although a trademark for a copyrighted product isn't much use if you don't hold the copyrights. I may be wrong, as I'm not a lawyer by any means, but as far as I see it, the only way WotC can restrict our use of dead TMs in the guise of "Product Identity" is to actively use the trademarks themselves (which have a renewable lifespan of 6 years). The fact that Mystaran products are now 'in print' due to the PDF market constitutes active use. If I am correct, this is a win-win situation for us... either WotC publishes new Mystara material (at least 1 publication every 5 years, at a minimum), or we're free to do with it as we please, as long as we don't re-create, copy, plagarize, paraphrase, etc. the original stuff. Stick to new material and we should be fine. 1) the issuing of the PDFs effectively keeps Mystaran material in print, which is enough, I think, to maintain the trademark. 2) Things which can't refer at all to any of the original material is not going to end up feeling very Mystaran, IMO. |
| #4zombiegleemaxJan 10, 2006 16:42:32 | Wizards did in fact let a number of TSR's old registered trademarks lapse, probably because it didn't want to keep paying registration fees for dead brands. However, as others have pointed out, even if you could use the brand "Mystara", you couldn't use the underlying copyrighted material--so you'd need to create a whole new world, which leaves the value of the idea in question. In fact, you might not even be able to use it for a D&D-style fantasy world, since there are issues of unfair competition law (outside of trademark law) that might apply. --- As for PDF file sales, I'm not precisely sure that they would be sufficient to sustain a trademark--a lot would depend on how the website presents the product, how it uses the trademark to promote the sale, and so on. It's a brand-new area of law--so it could ultimately go either way--but the closest body of law I can think of is a 1992 case called Lands' End Inc. v. Manbeck and the case law that comes after it. If I remember that case correctly, it was about a printed catalogue, which some courts have used, by analogy, to rule in newer trademark cases about Internet sales. According to those cases, the web site at a minimum has to show a picture of the product, use the trademark relatively close in space to the picture, and so on, in order to keep the trademark alive. I think the current PDF sites are probably doing all of that; but there's other unsettled issues--such as whether the trademark symbol has to be visible in the picture (a question raised, but not resolved, in the 2005 case In Re Dell)--so the entire subject is still wide open for debate. I find this an extremely interesting topic--well, ok, interesting for me, but I teach media law at university--since in effect a PDF sales site would allow a company to keep its common law trademarks forever, without ever publishing anything new. (You can hold a common law trademark (TM) even if you let your registered trademark (R) lapse.) Under this theory, all you'd need to do is offer some of your old branded products as a PDF file on your website somewhere, and you'd be able to hold onto your dead and decomposing trademarks until the end of time. This would certainly be contrary to the intent of trademark law, which wants to encourage commerce by freeing up old & unused names--but as with many other areas of law, the courts are a turtle, and the Internet is a hare. The turtle will catch up eventually, but possibly not for a long while. Pax, KRad |
| #5gawain_viiiJan 10, 2006 21:45:44 | Copyright issue is the hurdle, if one was of a mind to publish and sale new material... However, the idea that I was getting at here is this: We have the rules--OGL/d20 allows us to use it (almost) freely. We have Trademarks, their defunt status allows us to use it freely. We have no fluff--we cannot reproduce old material because it is copyrighted perpetually... and we cannot create new material, because new material is intrinsucally derived from the original, and derived matrial is 1-forbidden for use in d20, and 2-copyprotected under the original material's copyright. HOWEVER! The whole shining point in this entire discussion is the Vault's unique designation as the "Official" Mystara fanpage, thusly destinguished and anointed by WotC itsellf. As it mentions in the Vault's intro, they have the ability to make new cannon. The question I raise, is this: What exactly is the Vault's empowered to do in it's course of officiality? Can we produce, free of charge, a set of sourcebook pdf's? For both elders in the world and younger players (let's face it, our fanbase has dwindled dramatically--we need new blood, and we can't do that without 1-a consice and detailed sourcebook and 2-new material.) |
| #6johnbilesJan 11, 2006 0:03:45 | I find this an extremely interesting topic--well, ok, interesting for me, but I teach media law at university--since in effect a PDF sales site would allow a company to keep its common law trademarks forever, without ever publishing anything new. (You can hold a common law trademark (TM) even if you let your registered trademark (R) lapse.) Under this theory, all you'd need to do is offer some of your old branded products as a PDF file on your website somewhere, and you'd be able to hold onto your dead and decomposing trademarks until the end of time. How is offering Mystara products as PDFs for purchase without making new Mystara material any different from Coca-Cola continuing to use the same formula for Coke year in and year out? |
| #7zombiegleemaxJan 11, 2006 9:30:28 | How is offering Mystara products as PDFs for purchase without making new Mystara material any different from Coca-Cola continuing to use the same formula for Coke year in and year out? Well, I don't see it as all that different, but the question the courts would look at is whether Coca-Cola is using its brand name in a way that protects the trademark, and whether Wizards is using the Mystara brand name in a way that protects the trademark. When you buy a Coke, you're buying it because it's Coke, and the name is prominently displayed on the bottle and there's a trademark symbol to announce to the world that the name is already taken (which is the purpose of the TM and R symbols). If Wizards is selling old Mystara material without prominently displaying the name, or using the name to directly identify the product, or not displaying the TM symbol where and how it's supposed to, then the PDF sale might not be protecting the trademark correctly. Again, this is all still a new area of law, so it's not certain how it will all work out. I suspect that Congress or the courts will eventually draw the line somewhere, so that publishers cannot hoard names by PDF "cyber-squatting" the way that web site owners can no longer do so with Internet addresses. Pax, KRad |