IP and Business: Second Life - Brand Promotion and Unauthorized Trademark Use in Virtual Worlds

An entirely new world is emerging as a hotbed for brand promotion as well as possible trademark infringement - the world of virtual reality. The popular press reports with increasing frequency about business activities taking place in virtual worlds. Gartner, Inc., an information technology research and advisory company, predicted in a recent report that by the end of 2011, 80 percent of active Internet users will have some sort of presence in a virtual world. One of the most popular virtual worlds at present is Second Life®, an online economy that is growing at a rate of more than 25 percent per month. Second Life is often described as a massive multiplayer online role-playing game (MMORPG, pronounced mor' peg), but it is certainly not a traditional computer game.

Linden Lab, the San Francisco, California-based company that owns and operates Second Life, describes it as a "3D online world with a rapidly growing population from more than 100 countries around the globe, in which the residents themselves create and build the world, which includes homes, vehicles, nightclubs, stores, landscapes, clothing and games." These residents are online personas, called avatars, created by their users. The strong identification of users with their avatars, together with the ability to create and build virtual businesses that participate in a very real economy, is beginning to capture the attention of major brand owners. This environment offers a new means of brand promotion as well as a new platform for creating and using intellectual property rights and, consequently, for possible infringements of intellectual property rights, including trademark infringements.

"You retain copyright and other IP rights with respect to content you create in Second Life." - Second Life, Terms of Service, 3.2

Opportunities and challenges

Linden Lab responds to allegations of copyright infringement in accordance with the process and procedures of the U.S. Digital Millennium Copyright Act. The stated Second Life policy on trademarked material states that "Linden staff generally removes content that uses trademarks without apparent authorization, with or without giving notice to the object's owner-. Any resident may file an abuse report if they see any other resident making unauthorized use of trademarked material in Second Life." Since there is no case law on point...