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.
