Re: Dirtside Lite redux

At 11:33 AM 8/16/97 GMT, you wrote:

>Well, I guess GZG's use of GW TM might count as fair use so far...
>
>I suppose I have to accept your Mrs. as a more informed source than
>I, but I still maintain a weak belief that, so long as you're not
>trying to pass off your product as approved of by the TM holder, you
>can use their TMs if you acknowledge the as such. How many books 
>have you seen out there with names like "Unapproved X-Files TM 
>Companion", e.g. using a trademark without permission, but stating 
>so unequivocally to pose no challenge?

Well, yes and no. This is the reason why there are so many trademark
lawsuits. If you write a book about the X-Files with lots of plot
outlines,
episode guides, and that sort of thing, I think you're okay just putting
in
the disclaimer. Your book is basically reiterating what was already
common
knowledge due to the broadcasting of the shows, information that might
NOW
be in the public domain by virtue of the broadcast. Things like "air
date,"
"episode name," and the plot synopsis. I think this falls under fair
use. On
the other hand, not just anyone can write an X-Files novel and call it
an
X-Files novel. The rights to the novels are licensed out to third
parties.
If you call your novel an "X-Files (TM) novel" you could end up being
sued
by Fox and the holder of the novel license.

Where the GW stuff comes in is tricky. You aren't writing a "40K
Universe
game" but you are writing a conversion of epic or 40K for a different
game
system. You are using the 40K trademarks (with proper citation) to
compete
with the official products that use those trademarks. I'm not sure if
there's an analogy for this. At any rate, you might legally be okay just
putting down the citation for the trademark, but that's probably not
going
to stop GW from suing you. According to Leann, they'd have a good case.
Whether they could win or not is up to a court (or several courts, in
the
case of an appeal). 

Could you afford to fight this in court? There are many things in civil
law
that might be your right or freedom, but that doesn't protect you from
being
sued. Mikko was right, summary judgement is usually your protection
against
frivolous lawsuits but Leann confirms what he said and tells me that you
rarely get summary judgement in trademark disputes. 

>This is all assuming that these names are trademarked. I've turned 
>up a recent Dwarf and they're not listed among the long list of 
>trademarks, registered and unregistered. This isn't to say that they 
>couldn't still claim them as TMs.

Another thing to check is if Valkyrie, Pyramid, Challenge, MARS or any
other
magazines have used those terms. If they have, and GW didn't sue them
for
it, then it can be shown that GW hasn't been protecting its trademarks
for
those vehicles. Still, can you afford it if they decide to sue you over
it
anyway? Sure you'd win, but can you afford the financial burden until
then?

>Suppose we (with JMT's approval) knocked out the proposed "Dirtside
>Lite" with an internal table of stats labelled "Land Raider", 
>"Rhino", "Skullsmasha" etc. What is the worst-case scenario we could
>face? If it were a paper product, GW could make us pulp them, but, 
>half the point of the plan is to distribute it electronically. They
>could seize revenues that we've earnt... but the other half of the
>point is to make it free. They could sue for damages, but, AFAIK,
>damages in these cases are assessed on presumed loss of income;
>since the third half of the point is to target people who have 
>already bought GW product and who aren't going to buy any more, so 
>no loss to GW. So we withdraw it. Big fat hairy deal.

Good point. Unless, of course, GW can bring people forth who were "going
to
buy Epic, but used DS2 light instead." PacBell once stated in court that
their "top secret" document that a hacker stole from one of their sites
was
worth $80,000, when they sold a copy of it by their mail order service
for
$13. They only have to "prove" a monitary loss; they don't actually have
to
HAVE one. Still, a conversion table inside might be fair use, especially
if
you also included Ogre and Battletech conversions. I don't know, at
least
not without paying a lawyer for some consulting time. On the other hand,
they are most likely to hit with a "big foot" letter to force you to
cease
and desist first. 

Allan Goodall:	agoodall@sympatico.ca 
"You'll want to hear about my new obsession.
 I'm riding high upon a deep depression. 
 I'm only happy when it rains."    - Garbage