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Gygax Magazine? [UPDATE 3 - Electric Boogaloo]

S'mon

Legend
The one legal right S'mon doesn't mention is 'right of personality'. I hadn't heard of it until the Law of the Geek podcast had an episode on it. Its protection is based in state law in the US, so it is hard to predict how it would apply here

There is no 'Personality Right' in UK law. It can be said that the UK courts may take an expansive approach to the law of Passing Off (requiring Business Goodwill, Misrepresentation, and Damage per Jif Lemon) where there appears to be a misappropriation of a celebrity image - see Irvine vs Talksport; in that case Talksport used an unauthorised photo of Eddie Irvine the racecar driver to advertise their talk radio station. This was based on Irvine having an endorsement business.

Conversely in Stringfellow vs McCains the strip club owner Peter Stringfellow was unsuccessful in suing the food producer McCains for their "Stringfellows" long & thin chips, Stringfellow had no endorsement business to harm.

In this Gygax Magazine situation, I don't see any Misrepresentation given Luke & Ernie's use of their own name. I'm not sure whether the Gygax Estate has Business Goodwill in the Gygax name, it's not currently used but has been used in the past (to a limited extent) - a UK court could go either way, but I'd suspect they would say it does have Goodwill.
 
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JohnRTroy

Adventurer
But the key thing is that Personality rights are a concept in US Law, and the UK has different IP laws than the US, and both parties are in the US.
 

S'mon

Legend
TI agree with S'mon about the strength of Luke and Ernie's moral claims to the name, but that doesn't necessarily give them legal rights to publish a gaming magazine using it.

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.
 

S'mon

Legend
But the key thing is that Personality rights are a concept in US Law, and the UK has different IP laws than the US, and both parties are in the US.

What actually counts as an infringement does not seem to vary all that much, though - the law has been developing along similar lines.
 

Mark CMG

Creative Mountain Games
This is a key problem for me.


What is your position/connection to Gygax Games and/or Gail Gygax? You seem to have been informally representing Gygax Games's and/or Gail Gygax's interests online for a few years or more but I was never sure if there is an official connection. Do you represent either in a legal capacity? You seem to have some understanding of the law. Are you perhaps just a friend who also happens to be a lawyer?

My own involvement here is just as a fan who is also a regular Gary Con attendee who wants to see MORE celebration of Gary's legacy, not less, and who wishes all parties to be more active in bringing that end about.
 

trancejeremy

First Post
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.

A quick google search brings up the case of White Cloud toilet paper, a brand by Proctor & Gamble which was dropped (to try to push sales of their more expensive brand, Charmin), then some other company picked up the trademark and sold it to Walmart, which used it for their line of toilet paper.
 

Leif

Adventurer
... But that's in UK law; US law varies by State.
This is true, but it is also worth considering that oftentimes, when a state finds a statutory scheme that works for an area of law, then that state's statutes in that field of law are subject to being copied by other states. To say nothing of the National Conference of Commissioners on Uniform State Laws. http://uniformlaws.org/

Admittedly, it is quite rare to find a statute that has been enacted precisely verbatim by a number of states. However, if there is a general consensus among the states on how best to handle a given situation, which happens more often than you might think, then the differences between the laws of those states concerning that matter will probably be largely superficial. It is also worth noting that the procedures and precedents concerning those laws can vary significantly from state to state. I strongly suspect that this holds true in any common law jurisdiction, American, English, or what-have-you.

Take legal drinking age for example: in the vast majority of states it is legal to buy spiritous liquors at age 21. However, by a judge's ruling, South Carolina appears to allow the possession and consumption of alcohol by those 18 to 20 years of age. [Article 17, Section 14 of the state constitution conditionally gives those 18 and over the "full legal rights and responsibilities" of all other adults, with one exception -- the General Assembly can restrict the sale of alcohol. But that section of the Constitution of S.C. does not specifically address consumption or possession, which leads to the conclusion that an 18-year-old can possess and consume alcoholic beverages, he/she just can't buy them.] And, the State of Wisconsin allows the consumption of alcohol by minors in the presence of parents. Otherwise, it now appears to be the law in practically every state that the legal drinking age is 21 years.

It hasn't been all that long, though, since the patchwork of legal drinking age(s) across the United States was considerably more variegated. If memory serves, which it may not, Florida and Louisiana both had drinking ages lower than 21. Someone correct me if I am wrong.
 
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JohnRTroy

Adventurer
What is your position/connection to Gygax Games and/or Gail Gygax? You seem to have been informally representing Gygax Games's and/or Gail Gygax's interests online for a few years or more but I was never sure if there is an official connection. Do you represent either in a legal capacity? You seem to have some understanding of the law. Are you perhaps just a friend who also happens to be a lawyer?

There's no official connection. I was friends with Gary for over 15 years. While I guess you could count the stuff I contributed as "pro bono freelance", I not either an employee or freelancer of Gygax Games, nor do I plan on it in the forseeable future. In fact, I'm one of the few people who worked with Gary who doesn't really want a career in the publishing or game industry.

I've simply maintained a friendship with Gail since Gary died. On occasion, she will ask me to clarify things online as a favor, like I did in the thread before Morrus was contacted, but other than that, my opinions are my own. Admittedly, this gives me a bias of my own, as I have not had the opportunity to befriend Gary's kids, so in the case of family disagreements I'm only hearing one side, and my level of friendship (IMO) is just minor. And that's why I'm treading carefully.

I chime in on threads like this for two reasons. There's a tendency for people to jump in and see things without doing a lot of research, and I feel obligated to be truthful and try to correct misconceptions about Gary's past and his feelings--a lot of people just look to the "old days" and don't pay attention to other things Gary did, for instance. 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.

As far as law goes--I just find creative rights and IP law fascinating, and have been involved in researching cases and helping other people out as a layman.

My own involvement here is just as a fan who is also a regular Gary Con attendee who wants to see MORE celebration of Gary's legacy, not less, and who wishes all parties to be more active in bringing that end about.

I have no objection to the Gygax sons publishing their own magazine, nor to GaryCon itself. I sincerely believe they want to just have some fun with gamers and work on their own creative endeavors, and I'm sure Gary would be proud of them for finally getting involved in a major way with game development. Heck, I'll pick up a few issues and see what it's like.

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. That's a pretty grey area to deal with. I know of at least one lawsuit where a music group's members got control of their trademark based on the goodwill (they being the original members, having a stable line-up) in a case the original production company was dissolved via bankruptcy and there was no legal transfer or assets from the owner's old company to new company, so there was no history of a registered mark. If, however, he could have proved abandonment of the mark, the group might have actually lost the case.

Anyway, I think Right of Publicity, even if it conflicts with Trademark law, could come into play. There's a good web site dealing with case precedent in the US.

http://rightofpublicity.com/notable-cases
 
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Mark CMG

Creative Mountain Games
Thanks for the response, JohnRTroy. I'm sure the legal situations will all be resolved in due course and I won't pretend to know what either side is thinking or doing to make that happen, so I won't comment on that aspect. As to getting to know what joy Gary's legacy brings to the folks who congregate at Gary Con every year, you should certainly not be a stranger and make your plans to come to the convention this year. Gary's games from all of his decades publishing are in abundance and folks have a great time playing and running them. Bring your dice! :)
 

Leif

Adventurer
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.
This sounds reasonably accurate, in general terms, if not specific ones. We do, however, have at least one IP lawyer on this site! [MENTION=51567]Lou[/MENTION] care to comment? Or is that conditioned upon an assurance of payment?
That's a pretty grey area to deal with. I know of at least one lawsuit where a music group's members got control of their trademark based on the goodwill (they being the original members, having a stable line-up) in a case the original production company was dissolved via bankruptcy and there was no legal transfer or assets from the owner's old company to new company, so there was no history of a registered mark. If, however, he could have proved abandonment of the mark, the group might have actually lost the case.
The problem with the above analysis is that it involves a bankruptcy. There are many legal rules, statutes, and precedents that 'control' very many aspects of life in these United States. One of the fastest ways to get any particular one of them totally chucked out the window is to try to enforce it against a Debtor in Bankruptcy, a known creditor of such a person, or -God Forbid- a Bankruptcy Trustee. That being said, the case may well be as claimed, but the precedential value of the case itself would possibly be stronger if there was no bakruptcy involved. Possibly, mind you, just possibly.
 
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Henry

Autoexreginated
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

Explorer
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

Adventurer
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!
 
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Lou

Explorer
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]
 
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S'mon

Legend
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

Legend
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

First Post
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

Adventurer
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

Well, that was fun
Staff member
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

A Wicked Kendragon
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.
 

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