Making your mark
Filed under: Culture, Opinion, Second Life, Legal, Virtual worlds
There are two basic pieces to Linden Lab's virtual world. There's Second Life Grid, which recently got a name of its very own, which is essentially the platform, technology and company behind it.
Then there's the other bit. The part where Linden Lab so often says the real value is. Second Life, says the Lab, is the community, the content. All those people. That's the real value, it says.
So, if so many users (the exact number isn't important here) are what is described by the marks SL and Second Life (as distinct from Second Life Grid, which describes the underlying platform) -- if that endless creation of and remixing of content and communities is called Second Life -- why don't the people who Second Life actually are get equal time with what is, essentially, their own collective name?
Well, because the law says so, frankly. Until someone lawyers up and convinces a judge that Linden Lab is somehow in the wrong in the application and enforcement of their registered and unregistered trademarks, then Linden Lab is in the legal right here.
"SL" is an unregistered trademark, according to Linden Lab's Brand Center. It was used commercially in the context of virtual worlds, and for all legal purposes Linden Lab owns that mark in the context of virtual worlds.
You can have SL media players, and SL refrigerators, and SL photocopiers and SL shoes. It doesn't matter what you intend the letters S and L to stand for, as long as they don't have anything to do with virtual worlds, because then you're intruding on Linden Lab's protected turf. Demonstrate that you were using SL as a mark in a virtual worlds context, commercially, first and Linden Lab's claim to the mark evaporates.
"Second Life" is a registered trademark. It gets more active protection from encroachment. You can't make the mark go away by demonstrating that you had it first or used it first. They registered that mark first. They own it in this context, and US law backs them 100%. All the way. There are ways to do it, but again not without lawyering up and convincing a judge that the law agrees with you that circumstances exist that preclude Linden Lab's ownership of the mark.
You can still have Second Life cross-trainers, and Second Life guitars, and Second Life sentences. As long as they have nothing whatever to do with virtual worlds, and nobody is likely to think that they do.
Linden Lab has every legal right to control how those marks are presented, and used with two exceptions.
One is Nominative Use which is out of Linden Lab's control, but quite specific -- the protections granted to you by Nominative use evaporate if you don't meet the specific tests.
The other is estoppel. Basically Linden Lab (or its staff or representatives or agents) granted and/or encouraged use, mixing and remixing of the terms in the past, and changing their mind now causes real monetary loss to other parties. Estoppel is something that, again, you need to lawyer up and convince a judge about.
At the end of the day, until Linden Lab chooses to do otherwise, or someone convinces a judge to compel Linden Lab to do otherwise, SL and Second Life are every bit as much the property of Linden Lab as, for example, Coke and Coca-Cola are the property of the Coca Cola Company despite the Coca-Cola Company having handed those trademarks to the Second Life users to use within the virtual world as they saw fit.
Right now, though, Second Life users don't get as much right to their collective community name as they have to a multinational fizzy drink brand.



















Reader Comments (Page 1 of 1)
Jacek Antonelli said on 12:51PM 4-02-2008
Unfortunately, Linden Lab has added another level to this, as you mentioned in an earlier post (I'll link it below). Since complying with the new rules laid out in the Second Life Brand Center is now required as part of the Second Life Terms of Service, Linden Lab can ban your hide (and probably thus destroy your business) if they don't think you're following their rules -- even if US trademark law says you're in the right.
Of course, Linden Lab had already reserved the right to lay down the banhammer for any and all reasons, but adding a specific clause about branding to the ToS is certainly enough to justify bloggers' concerns that Linden Lab intends to actually make a move to enforce this.
Here's the "earlier post" I refer to above: http://www.massively.com/2008/03/31/linden-labs-laundry-list-of-legalese-terms-of-service-versus-f/
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Toneless Tomba said on 1:21PM 4-02-2008
I believe the term SL can't hold up in court especially if you have a company with those letters. Look at website hpcomputer their company Hyde Park Computers that sells dell systems. They have owned the domain since 1997.
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Ari Blackthorne said on 2:59PM 4-02-2008
As I've said in the Linden blog post: I intend to not change a thing. I know what Linden Lab is trying to do - and I support their efforts in protecting their intellectual property.
Fine, so be it.
At the same time, we all are human and I suspect they'll not be too interested in me and my creations. Besides - it's to Linden Lab to find me. And, when they do, to decide that I am infringing in a way that harms their marks, then decide to send me a cease and desist (I highly doubt they would spend a lot of time and money otherwise.)
So, pffft. I'll just keep on with status quo and wait for them to come to me. Completely revamped the art header of one of my blogs to clarify what it really is (and yes, the 'SL' in that always did mean what it says there.) - but the URL still begins with "slattitude".
As for my other blog... meh. That one breaks the rule of "SL" in context with two nouns. I refuse. We'll see what happens.
If they actually do demand I shut it down - then I'll make a big post of it and set it to archive (just like what Tateru did with her old place when firing up Massively) - steer people to the other one and make big waves about it.
But, even though the words on paper are really heavy-handed, I'm not so sure the Lindens are going to go out on a witch-hunt either.
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