Virtual Trademarks

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.

Comments

[dmyers]

1.

Hi Greg,

Not specifically about trademarks, but... I was looking at Planes of Power and the article you listed here on user-generated content for something I am writing now on CoH/V social play and how that play is by-and-large (and, I think, representatively) repressive. As I look for ways to generalize about user-generated content, it strikes me that (even in the case of WoW, which you characterize as non-user-generated-friendly) 1) social systems are "user-generated," and 2) these social systems have very similar rules/procedures, some of which are similar to social system rules outside the virtual, others of which seem unique to the virtual.

Those virtual social systems rules/procedures that seem unique are those involving the relationship between social systems and their contexts -- which you, of course, deal with in your discussion of trademarks and ownership and the like. Or, in short, real-world social systems have to, at some point, deal with real-world or "natural" laws. Virtual social systems don't.

(There are those, of course, who argue the relativist position that natural laws are either so ambiguous, so distant, or so non-existent that social laws rulz. But, thankfully, largely for the sake of having not to read lots of French philosophy, I am not one of those.)

In their isolation from rule-world laws, virtual social systems seem to generate very similar kinds of attitudes and interests. You might think (I did) that these would be largely influenced by GAME laws (i. e., game rules, which would conceivable be the virtual stand-in for natural laws), but, after observing matters, I don't think this is the case.

Social systems (to reify a bit) seem most fundamentally concerned with their own preservation and much of what these systems "generate" can be understand as functioning to that end. I can only speculate how this is relevant to dreary sorts of legal issues like trademarks and ownership, but I suspect the exclusivity of virtual social systems is going to play hell with any sort of "equal treatment under the law" principle.

I am reminded of a quote from the Hindi film Water (which my wife forced me to watch recently), which documents the treatment of Indian widows within a particular social system which chose to, so one of the characters explains, "ignore the law." Ignoring the law, whatever that may be, is almost certain to be more widespread (and more effective) in virtual social systems.

[greglas]

2.

Dave,

Thanks so much for the comment. If you have a draft of what you're working on, pls send it -- I'm very interested.

I think you're probably right here, and I'm actually kind of happy that you're taking this angle. What it suggests to me is that at least part (perhaps the major part) of the novelty of virtual worlds and law is not going to be best explained by an appeal to game rules and game social structures (the rabbit I've been chasing lately).

Instead, a more productive and complimentary path of explanation might be the novel nature of the virtual world environment/medium. Society online might wind up in a different place in much the same way that society in Papua New Guinea ended up in a different place.