SLART name in trademark dispute
Filed under: News items, Second Life, Legal
Richard Minsky, founder of The Center for Book Arts in New York City and owner of SLART Magazine is asserting ownership of his trademark in the broader wilds of Second Life, and potentially the surrounding media-sphere. Minsky started SLART magazine in December 2006 "as a critical review and journal of the arts in Second Life".
The trademark itself was applied for in March 2007, approved in December 2007, and now Minsky seeks to assert the rights and obligations associated with the SLART trademark.
Frankly, trademark law is not something most people have a very good handle on - indeed most people get it muddled up with copyright law, even though the two have very little in common.
Millions of words have been written on the topic of trademark law, and we're not going to bore you to tears with it here. Being granted a trademark confers both the right and the implicit obligation to take action against unauthorized use. If unauthorized use isn't stamped out wherever possible, then the whole act and cost of the trademark application in the first place is wasted.
In brief, a trademark serves to identify the source of goods and services and to distinguish them from other sources. One of the main functions of a trademark is to prevent confusion among consumers as to the source of goods and services. In this case, SLART has been approved by the USPTO as being associated with Minsky, and that he and his agents are the registered and authoritative source of things variously marked or described as SLART.
Perhaps the term SLART was in use before December 2006. If so, it doesn't really matter so much. The United States Supreme Court upheld the right of the United States Olympic Committee to trademark the Olympics in 1987, despite use more than a thousand years prior, in fact historical terms are very popular.
The Edward Lowe Foundation gives the following advice to trademark and would-be trademark holders:
- To substantiate first use of a trademark in commerce, maintain a file with an invoice showing the trademark and description of your product, a bill of lading, or a dated letter from a buyer acknowledging receipt.
- Use the symbols TM for trademark, SM for service mark, and an R in a circle for registered trademark.
- Any time your brand name is used as a generic description for a kind of product (such as with Kleenex or Xerox), protest immediately.
Step 3 is what is going on at the moment now that Minsky's trademark registration has been approved, and some people are obviously not happy about the results. Vint Falken among others is unhappy with Minsky's assertion of rights over other uses of the SLART trademark. There's also a SLART wiki (presently non-operational), though of course, whether or not the use is for-profit or not is not actually a factor for infringement.
We contacted Minsky for additional information, but he was unable to respond to queries by the time we published.
"The number of people in the Second Life community who use the term SLart is quite large," said Codebastard Redgrave, a notable Second Life artist. The reaction of Second Life artists to the assertion of trademark rights could well increase the use of the term in private and in public to the point that it is beyond any legal means of control.
It's possible that there are no villains here. Minsky applied for the trademark in 2006, and may now be put in the position where he is obligated to defend that mark now that it has been approved by the USPTO. Whether anyone in Second Life's artistic communities will pursue a counter-claim to Minsky's trademark is not yet clear - such counter-claims are not lightweight undertakings, and a poorly prepared challenge can make it much harder or nearly impossible for future challenges to succeed.
Linden Lab's most recently published policy on trademark use within Second Life, reads:
TRADEMARKED MATERIAL
Linden Lab staff generally removes content that uses trademarks without apparent authorization, with or without giving notice to the object owner. This generally includes all RL corporate logos and brand names.
It is often difficult to tell what may or may not be trademarked. However, use of designer logos and brand names without permission, such as Gucci, Nike, Louis Vuiton, etc., are usually not acceptable. Any resident may file an abuse report if they see any other resident making unauthorized use of trademarked material in SL.
In the past, Linden Lab has been swift to act against unauthorized use of trademarks. Far swifter than they have been to act against copyright infringement.
All in all this has the makings of a big community stink. Even if there's no villains.
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Reader Comments (Page 1 of 1)
1-20-2008 @ 1:10AM
dandellion Kimban said...
OK, I applied and got a trademark for "SL avatar". You all owe me 1L$ per month or you have to login just in IMs that is without avatar.
How can one trademark a word that is in common use?
Not to mention how can one be such a greedy bastard to do so.
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1-20-2008 @ 1:13AM
Tateru Nino said...
Well, I'm not sure if I'd ever heard the term prior to SLart magazine's launch.
But then, McDonald's has the trademark on "real beef" last I looked.
1-21-2008 @ 6:00PM
photozz said...
Honestly, moves like this make Mr Minsky appear to be a jerk of the highest order. The term was in wide-spread use in the art community prior to his copyright attempt. I believe his efforts to quash its regular use will be in vain as it use is fairly well embedded into the grain of SL.
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1-21-2008 @ 7:38PM
Brent said...
Not content to hijack common language for profit, he's now using the very people he's harassing for his own benefit. Today, I noticed that Mr Minsky has created his own entry in the very wikki he went after for using the term "SLArt".
http://virtualartpedia.a.wiki-site.com/index.php/Slart
As this is a community driven wikki, I feel the article is missing a few vital facts about the issues. I also noted there is no entry for Minsky himself in there. Anyone with some HTML exp care to help out?
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1-21-2008 @ 7:59PM
filthyfluno said...
Minsky has done more for the arts community in SL then
any one person that I know! He is a mentor and inspiration to hundreds of artists both in and out of SL, a visionary who has created
a RL magazine to help elevate the status of art in SL in the
RL, and he's a fellow artist with boatloads of talent and goodwill.
I applaud him on the success of SLART (tm) Magazine. As an artist in SL, I have no problem with what he is doing. Instead of trying to find people to gang up on him, I think our time would be better suited to making art, discussing it, sharing it, and learning from one another.
Come to "Art Talk" at Artropolis on Monday nights at 6:30 pm slt and we can discuss this issue more!
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1-22-2008 @ 2:31AM
dandellion Kimban said...
Now, this is a really gross example of bad approach to public communication. What are we? Five-year-olds?
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1-22-2008 @ 2:21PM
Esch Snoats said...
Despite whether this term was used before he filed for a trademark on it (I never saw it before he used it), he's the one who DID file for it and it was approved. He had a purpose to trademark it, not to be a "jerk" so that everyone else has to acknowledge it's his word and stop using it, but because of his magazine. Who cares if the magazine is being used for profit or not, that is totally irrelevant.
He followed the legal steps and did nothing wrong, so everyone stop acting like babies and move on with your life.
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1-22-2008 @ 2:32PM
Loki Popinjay said...
My take on the matter: http://loki-popinjay.blogspot.com/2008/01/art-of-making-money-of-slart.html
@Brent: I added a line to the wikki-page this morning ;-) So did someone else yesterday. This morning the text was gone. Wonder if mine will still be there tomorrow...
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1-22-2008 @ 3:13PM
dcspensley said...
Richard Minsky is not the enemy.
Did anyone take the time to Google this guy? He is an amazingly gifted artist and theorist and has been involved in artists rights longer than many artists in SL have been alive.
Yes, capitalism sucks, but SL is a capital construct with a traded currency and IP protections and tradmark opportunities for everyone. Trademarking something is part of the rules of the game.
Why not pick on Nissan or Coke if you want to oppose tradmarking and exploitation in Second Life? Attacking another artist is stupid and will do nothing but divide the community further.
Peace,
DC Spensley is DanCoyote in SL
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1-22-2008 @ 6:06PM
dandellion Kimban said...
Oh another one that will persuade us, the five-olders, that mr.trademark is a saint!
He did trademarked it, but he did it on false presumptions. One cannot trademark something that is publicly used before. One cannot trademark a term that is not distinctive for the product. And mind you to rexplain, how does the art produced and presented by mr. Minsky distincts from other art in second life so it can and should be labeled as SLart?
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1-22-2008 @ 8:47PM
Vint Falken said...
I mostly agree with Dandellion here: what gives him the right on this terminology? If he ever had one, it now falls under 'generic' use. Neither is he supposed to attack avatars that mention SLart in their profile to protect his trademark.
As for Coke in Second Life, they are rather loose with their trademark here. ;)
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1-24-2008 @ 11:44PM
Nebulosus said...
Reposted comments I left elsewhere (with edits):
Several months ago, I had been asked to participate in a weekly SL art web show (which I later turned down, since I was unable to make the commitment). When it came time to brainstorm a name for it, "SLart" was one of the suggested names. I immediately shot that down because I knew of ArtWorld's blog, magazine, and group, and I didn't think it would be right to take the name that someone had already claimed. At the time, I had no idea he had trademarked the term "SLart"; I refrained from using the term out of professional courtesy. I didn't automatically assume I was entitled to use it.
In fact, I had no idea he had "SLart" trademarked until a couple of days ago.
Perhaps it does seem silly to trademark the term, but the fact is that he did pay money to legally own the rights to it, regardless of anyone's personal opinion of whether or not he "should" have done it. Would I have trademarked it if I had been him? Probably not, but I don't think he is an asshole for doing so.
When he started his SLart blog/magazine/group, "slart" was NOT a widely used term because the art scene in SL wasn't nearly as widespread as it is now, contrary to popular belief -- it has really exploded only in the past year. Of course, it does make sense that "slart" would become an obvious term in association with art created within SL, but he trademarked the name before it was widely used. That fact might be annoying to some people, but so what? Why make such a big deal over nothing and carry on like a spoiled child because you can't get your way? I personally prefer "SL Art"; I think the word "slart" sounds rather corny (no offense, Mr. Minsky).
You might think he is a "SLasshole," but he has taken many strides to help get SL art recognized as a legitimate art form, which is something I am keen to see happen.
I will repeat this for emphasis: When he filed for the trademark, "SLart" was NOT widely used. Do a little research.
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1-25-2008 @ 3:32AM
dandellion Kimban said...
Sure that the term was not in use as it is now. In december 2006 second life had less than 2.5 million residents.
And it is not important if it was widespread use. It was in use and that was enough to show Mr. Minsky that something is not his but public. Nor that is important, that only shows a bit of his personality. What is important is that the term is descriptive so it cannot actually be used as a trademark.
Check Virtually Blind http://virtuallyblind.com/2008/01/25/slart-trademark/#comment-14356 for a good comment on this.
And it is important. Do you leave every little piece of scum to steal public property around just because that piece of property is not the best looking we have?
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1-25-2008 @ 3:51AM
Tateru Nino said...
Whatever the circumstances of the trademark being granted, prior use and so forth not necessarily withstanding under ยง 1051 of the act - Minsky's in the right by law, unless successfully challenged.
Trademark challenges, like patent challenges need to be done with care. A bungled challenge can make things much harder for any future challenges (there's a kind of double-jeopardy principle in effect).
Until such a challenge succeeds, Minsky has the sole right to use or authorize the use of the term, per US Federal law, whatever the circumstances or motivations are behind obtaining it.
You might see this as a deficiency in the regulations that govern the USPTO - and you would definitely not be the first to do so.
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1-27-2008 @ 4:52PM
Esch Snoats said...
Dandellion, why not challenge this in US Court if you feel he "stole" it from the community? Get over it. Move On. People are presenting you with the facts and you don't seem to care and want to bang that war drum anyway.
I love your "Oh another one that will persuade us, the five-olders, that mr.trademark is a saint!" comment, it shows how ignorant you are of this situation.
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1-28-2008 @ 6:28AM
dandellion Kimban said...
Would you be so kind to present my ignorance? I am not sure that my comment after what you have quoted is ignorant. Maybe you should reread trademark law.
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