About a year and a half ago, I pointed out some commentary on trademark law in virtual worlds. In the past year, there have been many developments on this front, including the Eros lawsuits in Second Life and more attention from legal practitioners (see this from WIPO). So, when I was recently invited by the Santa Clara Computer and High Technology Law Journal to write about user-generated content and virtual worlds for a Symposium, I decided to write a short overview of the topic of Virtual Trademarks with Candy Dougherty.
You can find the current draft here on SSRN. The abstract reads:
In this article, we discuss how trademark law might apply to virtual worlds and virtual economies. In Part I, we consider how trademark infringement in virtual worlds resembles and differs from trademark infringement in other media. In Part II, we look at the various business models of contemporary virtual worlds and how commerce takes place within them. In Part III, we consider the circumstances where trademark infringement may occur in virtual worlds by discussing questions of use, confusion, dilution and fair use. In Part IV, we examine the issue of contributory trademark infringement.
As Candy and I point out, questions of trademark infringement in virtual worlds are going to be highly fact-specific (just as they are offline). The most interesting question, I think, is how societal interests in free expression and play can be reconciled with the application of conventional trademark law to virtual commerce.
And since I'm on the topic of law and virtual worlds, I'll put in a plug for a few other papers. Candy recently wrote two short pieces on the Bragg case and gambling in Second Life. We co-wrote a similar short 5-pager on copyright. And I was recently invited to write a short essay on user-generated content and virtual worlds.