Gygax Magazine? [UPDATE 3 - Electric Boogaloo]

[Melf]

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]

"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

 

[Man in the Funny Hat]

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]

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.

 

[jonesy]

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

Unintentional or not, it's certainly one way to generate traffic.

 

[Thulcondar]

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]

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.

 

[Morrus]

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]

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!



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[Nellisir]

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".