Can trademarks be defended in Second Life?

Jeremy Pepper has been talking with me about this for a couple of weeks. There's a LOT of trademark infringement inside Second Life. I see brands being attached to lots of things inside Second Life. I like that, but in most cases it's not being done by the trademark owners. My son, for instance, bought me a virtual Apple Macintosh computer for my virtual office. That had the Apple logo on it. It wasn't "approved" or "built" by Apple. Someone else built the virtual item and is making the money off of its sale.

I can see how this will end up in court sooner or later. Why? Cause trademarks must be defended or else the trademark owner loses rights to them.

Anyway, Jeremy talks about the issue on his blog and starts a conversation about it. I wonder what Martin Schwimmer will say about this one (he is a lawyer and keeps the trademark blog).

Comments

  1. Britney Spears had her son’s name trademarked because she wants to make more money from him and start a children’s clothing line. Does that mean her son Sean could lose the rights to hos own name one day?

  2. Britney Spears had her son’s name trademarked because she wants to make more money from him and start a children’s clothing line. Does that mean her son Sean could lose the rights to hos own name one day?

  3. Whoa! That’s a clever thought experiment in the wild!
    It makes me wonder how “public” that trademark infringement/misuse has to be before action has to be taken.

    For some time, I’ve been thinking about the problem of how the use of trademarks in private communications becomes a little twisty when those private communications are publicly searchable. Is it infringement if a recording of a private use (misuse) of a trademark becomes part of an archive that is then publicly accessible? In the old days no one would have paid attention (somebody feel free to let me know if filmmakers, authors, or historians are ever prosecuted for documenting incorrect trademark usage).

    A one-on one interaction in SL, (or email) is clearly private, but how many participants makes it public? This is like the old “How many people in the to: line before it becomes a listserv?*”

    Does requiring accounts and logins make something “private” and not “public”? If too many people have accounts, does that make it “public”? (e.g. Yahoo)

    Some of the same stuff drifts in with the YouTube videos of young people dancing to copyrighted music. How public does it have to be to be a public performance, and who do you prosecute? The dancers? The guy holding the camera? The distribution site?

    *or before you get to the center of a Tootsie Pop(tm)

    -r.
    Futher thoughts:
    Money-for-products is kind of a red herring. Anything that could be considered compensation could be considered “commerce”. Like barter, or favorable download ratios. C.E. Petit mentions this briefly on his blawg, Scrivener’s Error, but I can’t chase down the reference on this.
    Anyway, the upshot is that “it’s not for profit” isn’t a defense for trademark or copyright infringment, even though we all really wish it was.

    Facinating stuff. Thanks Mr. Scobelizer.

  4. Whoa! That’s a clever thought experiment in the wild!
    It makes me wonder how “public” that trademark infringement/misuse has to be before action has to be taken.

    For some time, I’ve been thinking about the problem of how the use of trademarks in private communications becomes a little twisty when those private communications are publicly searchable. Is it infringement if a recording of a private use (misuse) of a trademark becomes part of an archive that is then publicly accessible? In the old days no one would have paid attention (somebody feel free to let me know if filmmakers, authors, or historians are ever prosecuted for documenting incorrect trademark usage).

    A one-on one interaction in SL, (or email) is clearly private, but how many participants makes it public? This is like the old “How many people in the to: line before it becomes a listserv?*”

    Does requiring accounts and logins make something “private” and not “public”? If too many people have accounts, does that make it “public”? (e.g. Yahoo)

    Some of the same stuff drifts in with the YouTube videos of young people dancing to copyrighted music. How public does it have to be to be a public performance, and who do you prosecute? The dancers? The guy holding the camera? The distribution site?

    *or before you get to the center of a Tootsie Pop(tm)

    -r.
    Futher thoughts:
    Money-for-products is kind of a red herring. Anything that could be considered compensation could be considered “commerce”. Like barter, or favorable download ratios. C.E. Petit mentions this briefly on his blawg, Scrivener’s Error, but I can’t chase down the reference on this.
    Anyway, the upshot is that “it’s not for profit” isn’t a defense for trademark or copyright infringment, even though we all really wish it was.

    Facinating stuff. Thanks Mr. Scobelizer.

  5. Robert, I know your new company is PodTech, but you’ve blogged a bunch about Second Life, and I think you also mentioned you’d be working with the Second Life guys – can you say anything about those plans? Is there a relationship between Second Life and PodTech? I think a 3D future for the Internet coming fast, and that maybe Second Life is the best example of that yet, so I can also see some possible connection with Web 2.0. You’re going to be working on the committee around Web 2.0 standards? Cool! All fun stuff to think and talk about, eh? Food for a future blog entry?

  6. Robert, I know your new company is PodTech, but you’ve blogged a bunch about Second Life, and I think you also mentioned you’d be working with the Second Life guys – can you say anything about those plans? Is there a relationship between Second Life and PodTech? I think a 3D future for the Internet coming fast, and that maybe Second Life is the best example of that yet, so I can also see some possible connection with Web 2.0. You’re going to be working on the committee around Web 2.0 standards? Cool! All fun stuff to think and talk about, eh? Food for a future blog entry?

  7. I don’t see how this is any more a problem in SL than anywhere else. Apple logos appear all over the place in the Internet. For the moment, the only thing unique about the occurrences in SL is that you can’t do a Google search to find them.

    I am not a lawyer, but I don’t think the requirement that you defend your trademark means that you must defend each and every violation. These days that would be impossible. What you CAN’T do, as I understand it, is to simply ignore violations for years at a time and then suddenly take an interest again.

    SL (Linden Labs) has had a commitment to paying close attention to trademark/copyright issues from the beginning, with details of implementation to follow. Like a lot of things in SL, it is a work in progress. They do a fair amount of planning and make public their “roadmaps” for future work to a greater extent than many companies (Microsoft, Adobe, Apple being examples of companies that value secrecy for their own products while espousing the need for “roadmaps” from everyone else).

    A good example of this was that the company promised a Linux version of SL early on. I think many had given up hope that such a thing would ever come to be, especially when an OS X version suddenly appeared. That OS X version in fact was the deciding factor in my switching to an Apple computer for much of my online activities, and formating Windows out of existence on my older Intel PCs. Now that Apple has switched to Intel (how ironic) there is a good chance that my next PC will NOT be an Apple (why bother?) and I’ll just get the best value Intel/AMD box I can find and run Linux on it. There is a good chance that SL will run on such a machine.

    Linden labs has been good as their word in honoring their early promises, even in some cases when they didn’t quite know how they were going to do it in advance. I’m sure the trademark/copyright issue will be the same. There is (probably) no way to fully automate detection of violations in SL any more than such detection can be automated on the Internet as a whole. Does Cafe Press inspect every T-shirt they print with a magnifying glass before it is mailed out? I suspect not. It will continue to be the responsibility of copyright/trademark holders to detect violations and use the existing laws to warn/prosecute violators. About all SL can do is to expedite deletion when such violations are found. I think they are already doing this.

  8. I don’t see how this is any more a problem in SL than anywhere else. Apple logos appear all over the place in the Internet. For the moment, the only thing unique about the occurrences in SL is that you can’t do a Google search to find them.

    I am not a lawyer, but I don’t think the requirement that you defend your trademark means that you must defend each and every violation. These days that would be impossible. What you CAN’T do, as I understand it, is to simply ignore violations for years at a time and then suddenly take an interest again.

    SL (Linden Labs) has had a commitment to paying close attention to trademark/copyright issues from the beginning, with details of implementation to follow. Like a lot of things in SL, it is a work in progress. They do a fair amount of planning and make public their “roadmaps” for future work to a greater extent than many companies (Microsoft, Adobe, Apple being examples of companies that value secrecy for their own products while espousing the need for “roadmaps” from everyone else).

    A good example of this was that the company promised a Linux version of SL early on. I think many had given up hope that such a thing would ever come to be, especially when an OS X version suddenly appeared. That OS X version in fact was the deciding factor in my switching to an Apple computer for much of my online activities, and formating Windows out of existence on my older Intel PCs. Now that Apple has switched to Intel (how ironic) there is a good chance that my next PC will NOT be an Apple (why bother?) and I’ll just get the best value Intel/AMD box I can find and run Linux on it. There is a good chance that SL will run on such a machine.

    Linden labs has been good as their word in honoring their early promises, even in some cases when they didn’t quite know how they were going to do it in advance. I’m sure the trademark/copyright issue will be the same. There is (probably) no way to fully automate detection of violations in SL any more than such detection can be automated on the Internet as a whole. Does Cafe Press inspect every T-shirt they print with a magnifying glass before it is mailed out? I suspect not. It will continue to be the responsibility of copyright/trademark holders to detect violations and use the existing laws to warn/prosecute violators. About all SL can do is to expedite deletion when such violations are found. I think they are already doing this.

  9. Like it or not,
    Property law will come to the virtual worlds. Trademarks can only be used by their owners. Designed objects sold by their owners or agreed agents, This goes for all representations and derived works as well-plastic/paper/or pixels. SLers can’t legually make and sell virtual “Apple designs and logoed” products.

    theymay claim “fair use” for non commercial exhibits of such models, BUT SL as a for profit company, will have to answer to Apple, if they wanted to move to have these objects removed.

    While browsing a “SL boutique”, i saw Houses by a “REM KOOLHAUS” – now i gotta think these designs were not from the actual REM studio…and if not, they gottta be pulled- or else all others who create and design original properties for others will be affected.

    The bottom line is that professionals who create products need to be paid. And that websites that “profit” via advertising or subscribers shouldnt allow these types of legal violations to occur.

    and when they do, thats what the courts are for.

    larryr
    cube3

  10. Like it or not,
    Property law will come to the virtual worlds. Trademarks can only be used by their owners. Designed objects sold by their owners or agreed agents, This goes for all representations and derived works as well-plastic/paper/or pixels. SLers can’t legually make and sell virtual “Apple designs and logoed” products.

    theymay claim “fair use” for non commercial exhibits of such models, BUT SL as a for profit company, will have to answer to Apple, if they wanted to move to have these objects removed.

    While browsing a “SL boutique”, i saw Houses by a “REM KOOLHAUS” – now i gotta think these designs were not from the actual REM studio…and if not, they gottta be pulled- or else all others who create and design original properties for others will be affected.

    The bottom line is that professionals who create products need to be paid. And that websites that “profit” via advertising or subscribers shouldnt allow these types of legal violations to occur.

    and when they do, thats what the courts are for.

    larryr
    cube3

  11. Oh, I definitely think that there will be a couple of trademark infringement suits stemming from things like Second Life at some point in the near future. It might not be from a high-profile corp, but it will happen.

  12. Oh, I definitely think that there will be a couple of trademark infringement suits stemming from things like Second Life at some point in the near future. It might not be from a high-profile corp, but it will happen.

  13. second life: paradise for counterfeiters?

    jeremy pepper wrote an interesting post about trademark-infringements in the virtual world of Second Life.
    for those who haven’t been on the ‘grid’: players of Second Life spend a good amount of online-time and -money on shopping virt…

  14. Smart answer to Robert’s question: should the trademarks in an mmporg be treated differently then, say, the trademarks on props in a model railroad set, or toy food in a playset? generally speaking, a die cast car or a toy railroad train or play food, is just one more piece of branded merchandise. If a company sells virtual Apple computers in an mmporg, why would it not be considered branded merchandise?

    Please note that I distnguish merchandise for sale in the virtual world, from merchandise that the user creates for his or her own use – such as the avatars in the City of Heroes case.

  15. Smart answer to Robert’s question: should the trademarks in an mmporg be treated differently then, say, the trademarks on props in a model railroad set, or toy food in a playset? generally speaking, a die cast car or a toy railroad train or play food, is just one more piece of branded merchandise. If a company sells virtual Apple computers in an mmporg, why would it not be considered branded merchandise?

    Please note that I distnguish merchandise for sale in the virtual world, from merchandise that the user creates for his or her own use – such as the avatars in the City of Heroes case.

  16. Do SL’s IP Rights Infringe on Innovation?

    If you don’t hear from me on Monday morning, it’s because I’m on my way to Supernova. In the meantime, I’ll leave you with the following hypothesis: Second Life’s innovative intellectual property rights regime, in which us…

  17. Now the big question is then who owns this “virtual mac”, developers of second life, Scobleizer’s son, or Apple?

  18. Now the big question is then who owns this “virtual mac”, developers of second life, Scobleizer’s son, or Apple?

  19. [...] Trademarks Virtual Trademarks: “This is kind of fun: The Guardian runs an article on IP rights in Second Life, leading tosome blogs discussing trademark law in particular.’ See Marty Schwimmer, Professor Rebecca Tushnet, Robert Scoble, and Jeremy Pepper.’ (And while you’re at it, re-read Betsy Book’s excellent work to get an in-depth treatment of branding activities in VWs.) [...]