A Seller of Online Adult Novelties Brought Federal Copyright and Trademark Infringement Claims Alleging: “Linden looks the other way, while virtual residents rip off the SexGen product line, which includes specially programmed beds, rugs, sofas and even a coffin that enable consenting avatars to engage in virtual sex acts.”

I’m struggling to maintain a sense of decorum around here, so thanks!

Can we get serious for a second? Because it might be a lot of fun to talk how the day that having sex — even virtual sex — became a question of IP rights is the day that IP rights owners just went too far — but there are interesting doctrinal questions here.

What IP rights is Eros asserting? If its SexGen mark is being used in connection with the sale of a virtual but “counterfeit” version of the device, then the claim is relatively straightforward. But the complaint is written in a way that suggests that the device is itself a mark (trade dress); that implicates functionality questions, and then we have to talk about such questions as whether the design of the device is “essential to its use or purpose” — where “use or purpose” is metaphorical, or virtual. At least with physical sex toys the question of “function” is pretty straightforward, if you’ll pardon the pun.