Gygax Magazine? [UPDATE 3 - Electric Boogaloo]

(un)reason

Explorer
'Read Dragon magazine four hundred times thread' is round about the most repeatedly read content on EN. So I'm not getting the Fugees - more Pink Floyd :p
Hey! I'm up to 2002 now, and the last fugees album was in 1996. :p Maybe Rush would be a better analogy, since they released their first album in 1974, and are still going today. :cool:
 
Of course Luke and Ernie are entitled to use their own surname.
From what I understand about trademarks (admittedly, I'm no expert), this is not necessarily true. There could be a case if it can be shown that consumer's would be confused. For instance, if my last name is McDonald, I can't open restaurant called McDonald's. I'd probably even have a hard time publishing a cookbook called "McDonald's Recipes" because it can be confused. Trademark law is weird.
 
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Morrus

Well, that was fun
Staff member
From what I understand about trademarks (admittedly, I'm no expert), this is not necessarily true. There could be a case if it can be shown that consumer's would be confused. For instance, if my last name is McDonald, I can't open restaurant called McDonald's. I'd probably even have a hard time publishing a cookbook called "McDonald's Recipes" because it can be confused. Trademark law is weird.
This is my understanding, too. Perhaps an IP lawyer could weigh in, but my low-level knowledge of IP law suggests to me that combining "Gygax" and "TSR" without any context might ["might?" clearly it did, as this very thread shows!] create customer confusion.

But I'm not a lawyer. I know it confused me, and I'm fairly knowledgeable about the RPG industry. I thought it was a scam. I saw "Gygax Magazine from TSR" (and let's think about that - that, without context, makes no sense!), not "Gary Gygax's kids and some ex-TSR employees have got together to make a new magazine, but his widow has nothing to do with it".. I don't know what someone whose job isn't to follow these things who just sees this on a shop shelf would think.

That's why - despite some vocal criticism from the morally superior protectors of the innocent - I feel this thread has value. Without it, the customer would remain uninformed and possibly have the *wrong* impression. Transparency is a marvellous result which enables things to progress on their own merits.

I think there's a lesson to be learned here: if you don't want people to question you, don't be cryptic. That was one hella-cryptic marketing strategy - and let's be clear here: a website which says nothing but "GYGAX MAGAZINE FROM TSR: GIMME YOUR EMAIL ADDY" is a helluva risky tactic, but it's a chosen, deliberate one designed to attract attention - and such a tactic will, should, and did cause people to question it.

Those advocating "do not question, blindly follow along, submit your email address as ordered by the invisible anonymous person using a company name last used in 1997" are entitled to their opinion; I do not share it. I checked it out first, like a responsible net citizen, and kept people apprised of my progress lest it turn out to be dodgy. If the folks in question hadn't wanted this very thing to happen, they wouldn't have chosen a tactic which guaranteed it.

In the end, I guess it worked - is there any RPG-gamer on the web who isn't aware of this now? Luke, Ernie, etc. are going to do just fine with this.
 
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darjr

I crit!
I wonder if a better name would be 'The Gygaxian' or just 'Gygaxian'

Though, for example, couldn't anyone put out a magazine about the life and times of Gary Gygax and call it Gygax Magazine?
 

Morrus

Well, that was fun
Staff member
I wonder if a better name would be 'The Gygaxian' or just 'Gygaxian'

Though, for example, couldn't anyone put out a magazine about the life and times of Gary Gygax and call it Gygax Magazine?
I dunno. Gail Gygax says "Gary Gygax" is a trademark. So's "Morrus", if I decide it is. Whether it's registered or not is just protection. I don't know whether "Gary Gygax" is registered, but nobody's actually used it so that's kinda moot.

But they have used "TSR" (indeed, not "TSR Games", their new company, but "TSR") right next to "Gygax" which did create an impression with me. Well, with me it set off alarm bells, because I'm knowledgeable, and I wanted to know what was going on (and I was delighted to find it was all above board) but with some guy wandering into a game store and seeing it on a shelf? Who knows. That's why we have lawyers, I guess.

I'm very pleased to hear that the Gygax family (if not the Gygax Estate) is involved. But damn. They did the online equivalent of going into a bank dressed in a striped shirt and a mask and a bag labelled "swag" and then just meekly asking to open an account. That website looked as suspicious as it's possible to make a website. Why the heck didn't they just put a note at the bottom saying "Luke and Ernie Gygax have bought the TSR trademark"?

Well, the alternative is that it was very clever!
 
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Well, I'm neither a lawyer nor an American, so I know you'll all be waiting with bated breath to know what I think about a theoretical matter of US law...

I suspect that before you could show that customers might be confused, you'd have to show that there's some trading entity that TSR's Gygax magazine might be confused with. As far as I know, nobody has been publishing material using the TSR name or the Gygax name for quite some years.
 

Thulcondar

Visitor
I dunno. Gail Gygax says "Gary Gygax" is a trademark. So's "Morrus", if I decide it is. Whether it's registered or not is just protection. I don't know whether "Gary Gygax" is registered, but nobody's actually used it so that's kinda moot.
According to the TESS search on the USPTO website, "Gary Gygax" is not a registered trademark, nor is "Gygax". That doesn't mean it can't be used as a trademark, just that it's not officially registered with the USPTO. However, in order to do that, it must be used in commerce, and as far as I know, Gail hasn't actually sold anything under the Gary Gygax moniker. So that would be tough to make stick in court. (Note that I am not a lawyer, but I've dealt with these sorts of issues in regards to my own IP.)

"TSR", on the other hand, is a registered trademark (filed on May 25, 2011) belonging to something called Hexagonist Publishing. The website belonging to Hexagonist Publishing (hexagonist.com) is in turn registered to... Jayson Elliot.

So that part makes perfect sense and squares with what we've been told.

Joe
 
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Morrus

Well, that was fun
Staff member
as far as I know, Gail hasn't actually sold anything under the Gary Gygax moniker
"Cheers, Gary!" in 2011.

I suspect that before you could show that customers might be confused, you'd have to show that there's some trading entity that TSR's Gygax magazine might be confused with. As far as I know, nobody has been publishing material using the TSR name or the Gygax name for quite some years.
See above.
 

Melf

Visitor
I didn't think they meant for this to go live just yet.
Boy did you get that right! This information leaked out and has caused some unwanted confusion. I personally wish this had gone as planned with the release of the first issue. All publicity is good I suppose, but I would have preferred rolling out the project without the confusion. I hope people will read Gygax Magazine and judge it by its merits.
 

Thulcondar

Visitor
"Cheers, Gary!" in 2011.
I don't have a copy, so I don't know the answer to this, but by whom was it published? Is there a trademark statement somewhere on the inside of the book? I know that the proceeds went to the "Gygax Memorial Fund", and such was stated prominently on the cover, but that's very different from actually saying that "Gygax" was a brand under which the book was sold (i.e., "used in commerce"). I also don't see a ™ on the cover next to the name, so that makes it even more dicey.

Gail would be infinitely better off actually registering the trademark with the USPTO, in my opinion. It would clear up a lot of issues and give her firmer ground on which to stand, but even then wouldn't absolutely ban everyone from using Gary's name without permission. There's "fair use" in relation to trademarks as well. (Again, I'm not a lawyer, and this is just a layman's opinion.)

Apologies for the mini threadjack into the realms of IP law. I'm done now, pending more news on the magazine and company. I remain cautiously optimistic, but less cautious than I was yesterday. :)

Joe
 
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I didn't think they meant for this to go live just yet.
Except that if one does not mean for it to go live one does not put up a website that is, in fact, live. Even if all it does is add your email to a list to notify when the magazine is selling, even if you're not telling anyone it's there, by uploading to your webserver anything more visible to the public than a blank page you're letting the cat out of the bag. Rather than have someone stumble onto it and immediately ask the inevitable questions of, "What's this? Who's behind this? I haven't heard about this... what's going on here?" it should have been accompanied by a general press release and notifications to whatever gaming websites/news sources you want to inform.

If they honestly hadn't meant for it to be seen they definitely under-thought their sequence of activites for this.
 

Morrus

Well, that was fun
Staff member
I don't have a copy, so I don't know the answer to this, but by whom was it published? Is there a trademark statement somewhere on the inside of the book? I know that the proceeds went to the "Gygax Memorial Fund", and such was stated prominently on the cover, but that's very different from actually saying that "Gygax" was a brand under which the book was sold (i.e., "used in commerce"). I also don't see a ™ on the cover next to the name, so that makes it even more dicey.

Gail would be infinitely better off actually registering the trademark with the USPTO, in my opinion. It would clear up a lot of issues and give her firmer ground on which to stand, but even then wouldn't absolutely ban everyone from using Gary's name without permission. There's "fair use" in relation to trademarks as well. (Again, I'm not a lawyer, and this is just a layman's opinion.)

Apologies for the mini threadjack into the realms of IP law. I'm done now, pending more news on the magazine and company. I remain cautiously optimistic, but less cautious than I was yesterday. :)
FIrst - fake .sig to circumvent our sig rules? Not cool, dude, and not clever. Please stop doing that.

Secondly - your question is easily answered. In terms of IP law, all that matters is: were you under the impression that the book in question referred to Gary Gygax? Of course you were. And if you had a copy of the book, you'd see that his name is used in full frequently.

Obviously people would always benefit from an (r) rather than a TM. Everyone would, always, by definition. Stating this isn't really additional information for anybody; it's like saying "oxygen is nice". They simply determine whether the additional protection is worth it to them in a cost-benefit way.
 

Thulcondar

Visitor
FIrst - fake .sig to circumvent our sig rules? Not cool, dude, and not clever. Please stop doing that.
Apologies! Not trying to circumvent anything; it was just easier to copy it in from other places I've used it. Won't happen again, and I'll go through and edit it out upthread.

Secondly - your question is easily answered. In terms of IP law, all that matters is: were you under the impression that the book in question referred to Gary Gygax? Of course you were. And if you had a copy of the book, you'd see that his name is used in full frequently.
Of course, but just because a book is about someone doesn't mean that their name is used throughout constitutes a trademark. That's how people can write "unauthorized biographies" without establishing a trademark. Use of the ™ is one way to do so, and so is a notice at the front of the book. The best way would be to have it present in the work as an obvious brand or company name. You obviously have a copy of the book. Is it indicated to be a trademark anywhere in there? (I'm honestly trying to figure out the status of whether or not "Gary Gygax" or "Gygax" are unregistered trademarks, not trying to be argumentative.)

Joe
 

JohnRTroy

Visitor
It's not just Trademark Law that applies here. As the legal heir to EGG, she not just owns intellectual property rights to his post-TSR work, but right of personality. Since Gary Gygax is a person, you can't use his name, his likeness, etc, without the permission of the estate (Gail). The problem with personality rights is they vary from state to state.

The term "Gygax" when it comes to gaming has a very specific meaning. Put it this way, you wouldn't know Luke and Ernie (or Gail) without Gary. When people aware of the D&D game see the term "Gygax" you think of Gary or "the guy who created D&D". That leaves a term like "Gygax Magazine" a bit misleading. If they had used a different term like "Gygax Bros. Magazine", that would be more clear. There's a clear establishment of a "common law" trademark when it comes to Gary's own name being used, especially since terms like Gary Gygax's Dangerous Journeys and other books that have his name as part of the title.

I have a feeling if a battle to trademark his name happened between Gail and Luke/Ernie, it would fall under Gail's umbrella.

ETA--By "without permission", I mean in terms of commerce or anything that implies endorsement. You could write an unauthorized biography, for instance. But sticking the name "Gygax" or even "Gygaxian" on a gaming product in the title is just asking for trouble.
 
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Morrus

Well, that was fun
Staff member
Of course, but just because a book is about someone doesn't mean that their name is used throughout constitutes a trademark. That's how people can write "unauthorized biographies" without establishing a trademark. Use of the ™ is one way to do so, and so is a notice at the front of the book. The best way would be to have it present in the work as an obvious brand or company name. You obviously have a copy of the book. Is it indicated to be a trademark anywhere in there? (I'm honestly trying to figure out the status of whether or not "Gary Gygax" or "Gygax" are unregistered trademarks, not trying to be argumentative.)
I don't have it close to hand, unfortunately. But Gail Gygax saying "Gary Gygax is a trademark" (as she has done) is exactly the same as putting the shorthand (tm) after his name. IP law isn't dependent on correct application of shorthand notation; those are merely easy and commonly used ways to inform the reader. They aren't legal constructs in themselves.
 

Mark CMG

Creative Mountain Games
Boy did you get that right! This information leaked out and has caused some unwanted confusion. I personally wish this had gone as planned with the release of the first issue. All publicity is good I suppose, but I would have preferred rolling out the project without the confusion. I hope people will read Gygax Magazine and judge it by its merits.

Thanks! Good of you to clear that up. Hopefully folks will take you at your word and not make more of it than that, now that you are on the record. I look forward to what comes out in December! :)



.
 

Nellisir

Adventurer
I don't have it close to hand, unfortunately. But Gail Gygax saying "Gary Gygax is a trademark" (as she has done) is exactly the same as putting the shorthand (tm) after his name. IP law isn't dependent on correct application of shorthand notation; those are merely easy and commonly used ways to inform the reader. They aren't legal constructs in themselves.
No, but trademarks aren't copyright either. They need to be defended (which she is apparently doing) and maintained in use (whether or not this is occuring is apparently less clear). It looks to me (from skimming through wikipedia, yay me) that she can't just sit on the name, registered or not, forever.

That said, I'd put my money on the Estate right now for control of the name "Gygax".
 

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