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

AuthorKatja Weckström
PositionLecturer in Intellectual Property Law, Faculty of Law, FIN-20014 University of Turku
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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
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.
He noted that play creates order, even is order and even the least
deviation spoils the game and makes it worthless.
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.
permanent play communities are common due to human propensity to want to ‘be apart together’.
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.”
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
Huizinga (1949), Homo Ludens: A Study of Play-Element in Culture, Routledge, at 7, 10 and 77.
Huizinga 1949 at 10.
Huizinga 1949 at 8-9.
Huizinga 1949 at 12.
Huizinga 1949 at 200.

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