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I'm currently in the process (soon™) of releasing my first RPG. And I have a legal question about using some terms of another IP, that seem in my layperson view of the law fair use. The setting of the game I'm developing is one of vampires and urban politics akin to Vampire: the Masquerade (VtM). Would the use of words like 'kindred', 'embrace', 'disciplines', terms that are defined in dictionaries, possible of legal repercussion? Currently the name of the project is Lost Kindred and those 3 words are really the only ones that are in VtM that I'm using. I wouldn't mind changing the 'embrace' and 'discipline' terms but I really would want to use the word kindred.

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    \$\begingroup\$ Keep in mind that anyone can sue anyone for anything, there really is no guaranteed way to prevent being sued. The real question is whether you can even afford to defend yourself in court, not whether you would prevail, since most suits never get that far. \$\endgroup\$
    – barbecue
    Mar 31 at 12:33
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    \$\begingroup\$ What you are calling "Fair Use" is not how Fair Use generally works. \$\endgroup\$ Apr 1 at 12:09
  • \$\begingroup\$ @RBarryYoung I think what he's going for is "scène à faire," which is also probably not the case here, but it's closer. \$\endgroup\$
    – Jadasc
    Apr 1 at 17:53
  • \$\begingroup\$ @Jadasc That would make more sense. \$\endgroup\$ Apr 1 at 21:25

2 Answers 2

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I'm not an IP lawyer, so I can't give an authoritative answer (I doubt any authoritative answer can exist without going to court or otherwise reaching a legal agreement on the status of your works), but some basic notes:

First off, being "terms that are defined in dictionaries" does not fair use make. You can argue 'til you're blue in the face that your line of Apple computers is just using a common dictionary word and it's just an homage to your favorite artist, Fiona Apple, but Cupertino will still dispatch their most heavily armed lawyers to burn your company to the ground, salt the earth, and hang your (virtual) skull on a spike as a warning to others. If White Wolf can show that you're using their trademarks "in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services", you're toast, end of story. Similarly, if they can make a half-decent argument to that effect for long enough for you to run out of money to pay your lawyers, you lose, even if you have a strong case. I don't know about you, but if I see an urban vampire RPG product named Lost Kindred, my first thought would immediately be "oh, hey, they rebooted VtM again" (if it's thick enough) or "Hey, another Vampire supplement" (if it's thin). Not a good start.

White Wolf has definitely sued in the past over use of fictional worlds with too many similarities to their own World of Darkness setting. The production companies behind the Underworld movies were sued, White Wolf was granted an expedited hearing, and the production companies (which included Sony, a much larger company) rapidly settled (for an undisclosed amount). There was a lot more similarity between the properties than just three specific words (among other things, the plot of the original movie was alleged to be a rip-off of an earlier WoD novel), but if you're writing a setting that's already akin to VtM and using key terminology that has no specific connection to vampires aside from its use in White Wolf products, you're treading a very dangerous line. If you stuck to nothing but freely published fan fiction, they might ignore you, but if you start selling things set in a world that's borrowing WoD style, setting and terminology, I'd expect a call from their lawyers.

On the specific topic of the word "kindred", note that there are existing trademarks associated with that word; in 1996 there was a TV show loosely based on VtM called Kindred: The Embraced (it included five of the major clans by name for instance; it was an intentional adaptation, not a thinly veiled rip-off).

On top of that, their East Asian vampire material was released under the title Kindred of the East, further associating the word "kindred" with WoD and specifically their vampire-related properties. These uses don't give them rights to all uses of "kindred" by default, but it definitely establishes a closer association between the term and legally protected trademarks specifically in the context of vampires, RPGs, and modern urban fantasy, and you're overlapping all of those categories.

Short answer: Speak to an IP lawyer if you really want to go down this road. But I'd suggest your first stop should be a thesaurus; don't poke the bear more than you have to.

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    \$\begingroup\$ I'll note: From what I can tell, the modern White Wolf is a desiccated husk left over after it was acquired and hollowed out, so the people involved in the earlier lawsuits probably aren't there anymore. But that doesn't mean the present owners of its IP will be any less litigious if provoked. \$\endgroup\$ Mar 31 at 1:06
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    \$\begingroup\$ I'll add: even if OP would stay on the "OK" side of the line, I suspect he can't afford lawyers as good as White Wolf can, and he can't keep up the fight for as long as they can. The closer to the infringement line he'll be, the longer they can fight. And fight they must, because in USA if you don't defend your trademarks, you may lose them. So either OP is richer than I suspect, or he should keep far away from that line. \$\endgroup\$
    – Mołot
    Mar 31 at 1:18
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    \$\begingroup\$ @Mołot: Yeah, and as noted in the answer, White Wolf, while large by RPG publishing company standards at the time, was still tiny next to the companies behind the Underworld movies. Even today, the most profitable gaming line in the world (WotC) has revenue under $1B, with profits less than half that, and the market was smaller back then. Sony's revenues and profit are about two orders of magnitude higher than WotC, which is in turn probably an order of magnitude higher than White Wolf ever got. They made a multi-billion international corporation pay up; you're not going to win. \$\endgroup\$ Mar 31 at 1:41
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    \$\begingroup\$ +1 The story about Apple alone is worth an upvote. Actually, it’s worth joining this community just to upvote it. It’s highly entertaining and it actually answers the question. Speaking about Apple, see the image caption at the top of Wikimedia Commons’ explanation of non-copyright restrictions. \$\endgroup\$ Mar 31 at 13:07
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    \$\begingroup\$ @DarrelHoffman The X-Men example is a bad one, because the X-Men is a property of Marvel licensed to Fox. If X-Men were the original property of Fox, Marvel could use mutant, but the licensing agreements they have with Fox prohibit or make legally complex the use of Marvel mutants in the MCU. \$\endgroup\$
    – prosfilaes
    Mar 31 at 15:15
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As ShadowRanger points out, even if you win a trial it will still cost more money than you have.

I would like you to sit back and ask yourself why you want to use the word "Kindred". The word was not used in reference to vampires before Whitewolf. It was barely used at all in modern English.

If you are honest you will know that you want use it so that people seeing the title would think of the works of Whitewolf. Which is exactly what you are NOT supposed to do with trade marks. And that means that you are in the wrong.

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    \$\begingroup\$ Was this intended as a stand alone answer or a reply to one? \$\endgroup\$ Mar 31 at 12:00
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    \$\begingroup\$ It is a stand alone answer. ShadowRanger looked at it from a practical legal point of view. My answer looks at it from a ethical point of view. My first sentence is acknowledging the fact that most people are more interested in the the practical. \$\endgroup\$ Apr 1 at 8:14
  • \$\begingroup\$ @UndeadMonk, I'm curious too. Why is "Lost Kindred" so important to you? Did it just come to you, and nothing else sounded nearly as cool? (I can respect that). \$\endgroup\$ Apr 2 at 21:08

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