Yes but as the license is often posted in books not because WOTC content is used, but to avoid frivolous suits based on "similarities" it does present a problem. The real problem isn't for people creating an overt DnD setting. "It is that WOTC could say your orcs are similar to ours so you will pull your product line or we will sue you." You really can't use 1.2 for that type of protection from the frivolous suits that will I expect will follow.