Tuesday, September 25, 2007

Trademark Rights in Second Life Avatars

There is a post on Valleywag today regarding the trademark rights in a Second Life avatar. The post makes some common errors when referring to trademarks. The errors are not simply semantic, but are important to truly grasp how trademarks work. The first sentence of the post reads: Alyssa LaRoche has successfully obtained a trademark for her Second Life avatar Aimee Weber. Trademark rights come about through actual use of a mark, so rights are more accrued than obtained. A party can own a trademark registration but that by itself does not necessarily determine the strength of the mark, nor the ability of the owner of the registration to enjoin others from using a similar mark. If the post is referring to this trademark application, it should be noted that the application has not yet matured into a registration. Moreover, the application is based on an intent to use the mark and no statement of use or allegation of use has been filed, although it does not necessarily follow that the mark is not yet in use.

The post concludes by calling Alyssa Roche, the owner of the mark, foolish to think she really owns anything. She is seeking, in essence, a trademark on a figment of her imagination, in the service of a business of selling figments. It makes for good copy, but bad trademark analysis. Trademarks rights are always connected to the goods and services which the mark is used on or in connection with. Ms. Roche's trademark application sets forth the services as Computer programming services, namely content creation for virtual worlds and three dimensional platforms. From a trademark law perspective, so long as Ms. Roche uses her mark/avatar in connection with the services she provides, there is nothing stopping her from accruing trademark rights. Ms. Roche is not selling figments, she is selling very real programming services.

There are many fascinating intellectual property issues inside virtual worlds. This does not appear to be one of them.



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