Tuesday, March 25, 2008

Does Trademark Use Belong in a TOS?

Hopefully I will correctly have followed the guidelines and read enough in the four of the, I believe, 8 pages of trademarking law and guidelines that this post will not result in my account in the Second Life® virtual world being revoked. The strange wording of the previous sentence was predicated by the new Terms of Service and specific brand guidelines that would prevent me from saying my account with the name of the virtual world between my and account.

Now I agree that the corporation that owns and operates the above mentioned virtual world (neither which I am certain how to properly address since it isn't clear that just mentioning them as proper nouns is permitted) has a right to protect their copyright, and perhaps even a responsibility to do so. However, I have three major issues.

1) The guidelines are not exactly clear. (as is evidenced by the above awkward wording and references.)

2) We are describing a virtual location that lots of users reference. When referring to other trademarked terms a person can a say I love company A and I hate company B and I work for company C and not be violating trademark, even if it they do so in their personal blogs. The new branding rules are very confusing. I've studied law and I find it confusing. The not so great with legalese users are going to get lost in the pages of requirements. I'm not sure how to find the balance between protection of trademark and reasonable use but I can tell you it isn't there yet.

3) This is my biggest complaint. These do not belong in the TOS. Yes, trademark should be defensible, but when it remains trademark law it means if you flub up you will get a cease and desist notice first and you can fix the problem. Sometimes it is an innocent mistake or a use from a time previous to the branding documents. When it goes into a TOS it means that a violation of these rules can result in a summary cancellation of the users account and a forfeit of all of their intellectual property and investment in the world with little or no recourse.

Now, I am not a lawyer, I could be misreading these things. Also it is likely a legitimate thing to put into a terms of service. If I object I am free to remove my account.

That said, it seems to me that it is a valid complaint and a cause for unease that these trademark laws are appearing in the Terms of Service. I know of at least one person who is canceling a project. It certainly has caused me to pause and consider the risk of the projects I am proposing.

Are there any lawyers out there who would care to comment?

P.S. Finally found a 9th page 3 links down from the page referenced in the Terms of Service with the chart of usages, I can now tag my post appropriately.

1 comment:

Meadows Ling said...

I was a bit confused by all the Trademark stuff as well, and I even felt weird about saying "SL" on a twitter post. We definitely need some clarification.