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General Tabletop Discussion
Publishing Business & Licensing
Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
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<blockquote data-quote="pemerton" data-source="post: 8917376" data-attributes="member: 42582"><p>As a general proposition, there is no public interest in private parties conforming to the terms of their private agreements.</p><p></p><p>Paizo don't have any interest in the D&D trademark.</p><p></p><p>And in the example you're positing, D&D is not a trademark owned by any Contributor. Whether or not it is still Product Identity which A is contractually precluded from using is not straightforward. </p><p></p><p>I don't know how you are supposing A becomes a party to the OGL in respect of the SRD 5.1 in circumstances where WotC is defunct - who is the licensing party? Whether Paizo would have any interest in enforcing any obligation not to use that Product Identity is a further question, not straightforward if A is a party to a contract with Paizo, but reasonably straightforward (ie Paizo has no interest) if A and Paizo are not in a legal relationship to one another. Paizo has not got any general legal permission to stop its competitors using trademarks to compete with it!</p><p></p><p>How are damages measured in a passing off or similar action, in US law? I don't know. I don't see how B having a false belief about its legal rights would make a difference, though, unless Paizo is seeking exemplary (non-compensatory) damages.</p><p></p><p>The system of private law assumes that parties are capable of knowing their rights, including recognising that their legal position may not be the same as that of other parties (who eg may have different contractual entitlements, relationships to property, etc).</p><p></p><p>I mean, just because you walk into a building and don't get stopped doesn't mean I can assume I have permission to enter. (Eg this happens every day you go into your house, or perhaps your work.)</p></blockquote><p></p>
[QUOTE="pemerton, post: 8917376, member: 42582"] As a general proposition, there is no public interest in private parties conforming to the terms of their private agreements. Paizo don't have any interest in the D&D trademark. And in the example you're positing, D&D is not a trademark owned by any Contributor. Whether or not it is still Product Identity which A is contractually precluded from using is not straightforward. I don't know how you are supposing A becomes a party to the OGL in respect of the SRD 5.1 in circumstances where WotC is defunct - who is the licensing party? Whether Paizo would have any interest in enforcing any obligation not to use that Product Identity is a further question, not straightforward if A is a party to a contract with Paizo, but reasonably straightforward (ie Paizo has no interest) if A and Paizo are not in a legal relationship to one another. Paizo has not got any general legal permission to stop its competitors using trademarks to compete with it! How are damages measured in a passing off or similar action, in US law? I don't know. I don't see how B having a false belief about its legal rights would make a difference, though, unless Paizo is seeking exemplary (non-compensatory) damages. The system of private law assumes that parties are capable of knowing their rights, including recognising that their legal position may not be the same as that of other parties (who eg may have different contractual entitlements, relationships to property, etc). I mean, just because you walk into a building and don't get stopped doesn't mean I can assume I have permission to enter. (Eg this happens every day you go into your house, or perhaps your work.) [/QUOTE]
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Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
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