Gygax Magazine? [UPDATE 3 - Electric Boogaloo]

[Henry]

Also, I see Gail taking a beating for taking an unpopular stance with Gary's works, and while I think there is room for respectful disagreements, people need to remember that she's the spouse Gary was married to for almost 25 years, and games weren't the most important thing in his life.

Quick reminder about Gail: This is the lady who gave Gary her blessing to game with a bunch of fanboys (namely, a bunch of ENWorld Mods) on their wedding anniversary, because it made him (and us as a by-product!) happy. She's always had ENWorld Staff praise for being a super awesome lady who loved Gary very much.

By a similar token, I love seeing Ernie and Luke's contributions here, and hope the best for their magazine. I wanna see more, and see them contribute to the gamer community all the more, be it here, Dragonsfoot, Knights and Knaves, or wherever there's people pretending to be elves and kicking orcs in the junk and taking their stuff.

 

[Lou]

My four cents

My only objection is the confusing name--I believe they need to respect how their Dad left things and don't make it look like they have "inherited the throne", nor attempt to try to trademark the term "Gygax" by itself (which is how the logo looks), which I think is what Gail meant by respect. I'm sure Gary would object to the use of the surname by itself on a magazine if he was not involved in it at all. If they were actually more involved in Gary's creative efforts, were being groomed as the heirs both legal and creative (with Gary making specific statements to that regard), etc., and then suddenly they were cut out by Gail, I could see my opinion being different, but that doesn't appear to be the case here.

Speaking of Law, I believe S'Mon is right about the TSR thing. Abandonment of the Trademark rather than never having it in the first place, An abandoned mark is not irrevocably in the public domain, but may instead be re-registered by any party which has re-established exclusive and active use, and must be associated or linked with the original mark owner.

Four things jump out here:

1. A trademark is an indication of source of goods or services. A surname can become a trademark through use in commerce, if it is used as an indication of source. Busch(R) and Coors(R) are examples for beer.

2. There are different types of trademark rights in the US: common law rights, state law rights, and federal rights). The most important facts are start date, continuous use in commerce, and the extent of the use. There are also related rights under, mostly, state law in the US. A US federal trademark registration would be a superior right in the US, especially if it withstood attacks for 5 years of continuous use and a renewal.

3. Confusion is a tricky issue in trademark law. It will be even more difficult in this case, where Ernie Gygax and others with the Gygax name are involved. This would be very fact intensive and could go either way. My money is on whoever hires the better lawyers.

4. I don't believe that your last requirement for using an abandoned trade mark, namely "must be associated or linked with the original mark owner" is a real requirement. In the US, unless the mark has become generic, anyone can start using an abandoned mark and start creating trademark rights.

 

[Leif]

Four things jump out here:

1. A trademark is an indication of source of goods or services. A surname can become a trademark through use in commerce, if it is used as an indication of source. Busch(R) and Coors(R) are examples for beer.

2. There are different types of trademark rights in the US: common law rights, state law rights, and federal rights). The most important facts are start date, continuous use in commerce, and the extent of the use. There are also related rights under, mostly, state law in the US. A US federal trademark registration would be a superior right in the US, especially if it withstood attacks for 5 years of continuous use and a renewal.

3. Confusion is a tricky issue in trademark law. It will be even more difficult in this case, where Ernie Gygax and others with the Gygax name are involved. This would be very fact intensive and could go either way. My money is on whoever hires the better lawyers.

4. I don't believe that your last requirement for using an abandoned trade mark, namely "must be associated or linked with the original mark owner" is a real requirement. In the US, unless the mark has become generic, anyone can start using an abandoned mark and start creating trademark rights.

Thanks, Bro, I knew you could give us the lowdown!

 

[Lou]

I would actually think it a lot more likely that the "TSR" Trade Mark could be struck off due to making use of a famous brand which still has residual business goodwill, than that they could get into trouble for using their own "Gygax" name, which has only ever had limited business use. But that's in UK law; US law varies by State.

US trademark law is layered--federal, state, and common law. A US federal registration has superior rights in most cases to any state law trademark. But the primary issues are always the same: date of first use in commerce, continuous use in commerce, and the extent of the use. The US federal registration for TSR(R) is currently good for use for gaming. Interesting to note that there are now 11 active US registered trademarks of "TSR" in various industries.

Your analysis on goodwill has a hole: goodwill for whom? The "famous brand" you describe was abandoned by that mark holder.

The Gygax name is a different can of worms with a different fact pattern.

[edit]For the sake of full disclosure, as I have mentioned elsewhere on EnWorld, I am a US Patent Attorney and a licensed Attorney in the state of Texas. In the US, any licensed attorney of any state may practice trademark law before the USPTO.[/edit]

 

[S'mon]

4. I don't believe that your last requirement for using an abandoned trade mark, namely "must be associated or linked with the original mark owner" is a real requirement. In the US, unless the mark has become generic, anyone can start using an abandoned mark and start creating trademark rights.

I agree; assignment of rights on bankruptcy is a special case, and different from abandonment.

From what I can see:

1) Currently nobody has a registered mark in Gygax, and nobody has been using it in commerce in many years (and even then to a very limited extent), so AFAICS no trade mark rights vest in the word.

2) The Gygax brothers and the estate of Gary Gygax both have some personality-right claim to the word, personality rights being a fuzzy area that varies by State.

 

[S'mon]

Your analysis on goodwill has a hole: goodwill for whom? The "famous brand" you describe was abandoned by that mark holder.

In English law it appears that a business may retain residual business goodwill in a brand even if it has not been used in commerce for some years.

However a passing off claim also requires a Misrepresentation - eg the infringer is using the brand to misrepresent the source of the new goods/services as coming from the old TM owner. It sounds as if the US systems work similarly in practice.

 

[DMofDoom]

This thread was a bit of a rollercoaster, but in the end I have to say it leaves me with a lot of disgust, however, none of it directed towards any of the Gygaxi (plural of Gygax), nor towards Gygax magazine. And not at everyone who posted in this thread.

The term disgust feels a tad mild in fact, but it will do.

I can't wait to check it out (Gygax Magazine).

(I feel I should say I am not privy to any details of EGG's family history, save that he was married more than once, and had several children)

For all the many trolls, and yes you are trolls, who will troll (aptly so) all they can about this: I couldn't give a cup of piss about your opinions, so have at it.

When someone, your father perhaps, dies - he can't "pass on the torch" - cause he's dead.

Sometimes the feelings someone might have, towards a father that started a new family, change over time. Especially after their passing.

You can't change what you did (or didn't), or how your relationship played out, with someone who is deceased. No matter how much you might want to.

You can change how you remember them. You can yell into the darkness "Yes I want to spend time with you father!" And pick up his torch, light your brother's from it. And try to carry that torch somewhere that would make him proud, or maybe just make him smile.

You can be your father's son.
Anyone can. Try and stop them.
And you don't have to compromise your other feelings to do it. (or bend the knee) You will never know what they would think of it, but you will learn more about them, their friends, and yourself.

Wheedle and whine and chip your two cents at whoever will listen. See how far it that goes, surely nations must be trembling from the shock and audacity of a dormant, unsolicited, email newsletter.

"I have been deceived!" you wail, "This would have me think it was related to gaming and Gygax! This magazine about gaming from the sons of Gygax." you howl, "Tricked! Fooled! Foul! I was made to think he lived! That it was related to his legacy! Not his kids! His legacy! Something CREATED and SHAPED by him!" (something must have failed here to click)
Take your morals from law and see where that leads you.

Let your jowls flap as you shake your head at the disgusting brazenness of these sons using their own name, their father's name, in an endeavor following, however tentatively, alongside their father's footsteps.

 

[qstor]

3. Confusion is a tricky issue in trademark law. It will be even more difficult in this case, where Ernie Gygax and others with the Gygax name are involved. This would be very fact intensive and could go either way. My money is on whoever hires the better lawyers.

Lawyer here but don't know IP stuff. Didnt all the rights etc owned by TSR get sold to WotC. so I don't understand how someone can claim to copyright the words TSR and link them to OSR stuff?

Mike

 

[Morrus]

This thread was a bit of a rollercoaster, but in the end I have to say it leaves me with a lot of disgust, however, none of it directed towards any of the Gygaxi (plural of Gygax), nor towards Gygax magazine. And not at everyone who posted in this thread.

The term disgust feels a tad mild in fact, but it will do.

I can't wait to check it out (Gygax Magazine).

(I feel I should say I am not privy to any details of EGG's family history, save that he was married more than once, and had several children)

For all the many trolls, and yes you are trolls, who will troll (aptly so) all they can about this: I couldn't give a cup of piss about your opinions, so have at it.

When someone, your father perhaps, dies - he can't "pass on the torch" - cause he's dead.

Sometimes the feelings someone might have, towards a father that started a new family, change over time. Especially after their passing.

You can't change what you did (or didn't), or how your relationship played out, with someone who is deceased. No matter how much you might want to.

You can change how you remember them. You can yell into the darkness "Yes I want to spend time with you father!" And pick up his torch, light your brother's from it. And try to carry that torch somewhere that would make him proud, or maybe just make him smile.

You can be your father's son.
Anyone can. Try and stop them.
And you don't have to compromise your other feelings to do it. (or bend the knee) You will never know what they would think of it, but you will learn more about them, their friends, and yourself.

Wheedle and whine and chip your two cents at whoever will listen. See how far it that goes, surely nations must be trembling from the shock and audacity of a dormant, unsolicited, email newsletter.

"I have been deceived!" you wail, "This would have me think it was related to gaming and Gygax! This magazine about gaming from the sons of Gygax." you howl, "Tricked! Fooled! Foul! I was made to think he lived! That it was related to his legacy! Not his kids! His legacy! Something CREATED and SHAPED by him!" (something must have failed here to click)
Take your morals from law and see where that leads you.

Let your jowls flap as you shake your head at the disgusting brazenness of these sons using their own name, their father's name, in an endeavor following, however tentatively, alongside their father's footsteps.

Well, you're certainly angrier than any participant in this thread, or any of the involved parties, I'll give you that much. More so than the issue might warrant, IMO, but your emotions are your emotions, I guess. And you certainly have more of a handle on the italic and bold and underline tags than anyone else, so I'll congratulate you on that (slacking a little on the CAPS though).

However - and this is your first post, I see - please refrain from insulting other EN World members. If you're unclear as to the rules of the site, you can find them here. This includes calling other members "trolls" and phrases like "I couldn't give a cup of piss about your opinions". Any questions abut that, feel free to email me.

 

[jonesy]

Let your jowls flap as you shake your head at the disgusting brazenness of these sons using their own name, their father's name, in an endeavor following, however tentatively, alongside their father's footsteps.

Gail also has rights here. WotC might have something to say. And in the initial confusion nobody even knew that the Gygax guys had anything to do with it. The situation wasn't and isn't as simple as you seem to assume.