Trademarks in Virtual Worlds: Law, Outlaws or New in-Laws?

• Author: Katja Weckström
• Position: Lecturer in Intellectual Property Law, Faculty of Law, FIN-20014 University of Turku
• Pages: 112-120

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Trademarks in Virtual Worlds: Law, Outlaws or New in-Laws?

Katja Weckström

Lecturer in Intellectual Property Law

Faculty of Law

FIN-20014 University of Turku

katwec@utu.fi

Abstract. Internet service provider s are on the agenda, when considering their involvement

in and responsibility for infringement of trademark rights. The keyword advertising by search

engines and the activity of internet auction sites constitute the top of the iceberg, while the use of

trademarks on social network sites and p articularly in virtual worlds are up and coming issues.

While the first two are entering trademark law through the door of criminally sanctioned

trademark counterfeiting, there is no trade in physical goods in virtual worlds. The issue of

trademark infringement might be raised, when virtual goods replicating physical goo ds are sold in-

world under someo ne else's trade mark. Similarly, the use of service marks for competing services

seems like free -riding. But who owns rights in tr ademarks in virtual worlds? This article explores

the channelling of real world trademark law into virtual worlds and highlights some aspects that

merit consideration.

1 Introduction

Johan Huizinga studied the play-element in culture and introduced the idea of a Magic Circle encapsulating the

playground, which is marked beforehand eit her materially, ideally, deliberately or as a matter of course and

within which special absolute rules apply.

1

He noted that play creates order, even is order and even the least

deviation spoils the game and makes it worthless.

2

Play is distinct from ‘ordinary’ or ‘real’ life i n that it is free or

voluntary, generally disinterested; free of non-play interests and limited both in time an d scope.

3

Nevertheless,

permanent play communities are common due to human propensity to want to ‘be apart together’.

4

Huizinga see s play in all ar eas of human activity: social relations, law, politics, economics and trade. For

example, he notes:

“The statistics of trad e and production could not fail to introduce a sporting element into

economic life. In consequence, there is now a sporting side to almost every triumph of

commerce or technology: the highest turnover, the biggest tonnage, the fastest crossing, the

greatest altitude, etc. Here a purely ludic element has, for once, got the better of utilitarian

considerations, since experts inform us that s maller units – less monstrous steamers and

aircraft, etc – are more efficient in the long run. Business becomes pla y.”

5

Although pla y-activity is often present in such serious activity, non-play activity may also b e disguised as

play. Such abuse of play Huizinga calls false play and pucrilism and is, to his mind, rampant in politics, where

the value purism and absoluteness of play is degenerated, manipulated or r educed to technicalities that deprive

1

Huizinga (1949), Homo Ludens: A Study of Play-Element in Culture, Routledge, at 7, 10 and 77.

2

Huizinga 1949 at 10.

3

Huizinga 1949 at 8-9.

4

Huizinga 1949 at 12.

5

Huizinga 1949 at 200.