Virtual Trademarks

In the past year, there have been some interesting developments in trademark law and virtual worlds, including the Eros lawsuits in Second Life and increased attention from legal practitioners (e.g., 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 very interesting Symposium, I decided to write a short overview of the topic of Virtual Trademarks with Candy Dougherty. The piece was intended to be a more or less straightforward application of various basic doctrines of trademark law to the particular case of virtual worlds.Today, we put a draft up on SSRN. Here’s the abstract:

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.

The most interesting question here, and one which probably deserves more investigation than we give it, is how free expression is to be reconciled with games and commerce. Of course, that question is hardly unique to the virtual world context.