The clothing firm American Apparel must be tempted to view their opening of a ‘cyberstore’ in the smash-hit online world of Second Life last month as ‘mission already accomplished’. When interviewed for a piece in The Guardian, their director of web services was keen to play down the revenue-generating expectations of the virtual store, framing it as an experiment in marketing and brand-building. But given the whirlwind of free publicity generated by this story for both American Apparel and Second Life, it seems certain that other ‘real world’ companies will want to follow suit. And as more companies look to promote themselves in such virtual environments, so will their motivation grow to fight any infringements of their brands - such as the virtual computers sold on Second Life that look rather similar to Apple laptops.
In the US the Digital Millennium Copyright Act 1998 provides ‘safe harbour’ for intermediaries such as ISPs, and the creators of Second Life, for copyright infringement by its users, provided they take action to block these infringements when notified by the copyright holder (we have similar exemptions in the UK under the E-Commerce Directive for ISPs caching, hosting or acting as "mere conduits").
However the DMCA does not provide protection for trade mark infringements, and following a 2001 ruling in the US (see here for more details) those such as the Second Life creators Linden Labs could risk potential liability for contributory infringement if they choose to turn a blind eye. Not that Linden Labs are likely to do so – they probably have as much to gain by policing their virtual world, and promoting customer and investor confidence, as those who actually own the brands. But the potential for future litigation is certainly there for intermediaries such as ISPs who take a more laissez-faire approach.
I work for American Apparel and I've been working on our Second Life project. Translating the brand to virtual reality has been really interesting. Linden Lab people have been very helpful and co-operative. They are good and diligent about removing trademark violators, but sometimes brut force approach is not the best, and they have helped us come up with more creative solutions than simply banning violators from the game. After all, Second Life is still a place where people mostly play, and we wouldn't want to be killjoys or throw our corporate-weight around.
Anyway, for now, I think we (as in the American Apparel employees who work on this) are our own biggest potential threat. On one hand, Second Life has great potential for realizing fantastical aesthetic visions, on the other hand, it is receiving too much attention to treat it completely as a playground for experiments. So sometimes we have to curb our enthusiasm so as not to risk diluting our own brand.
Posted by: Weronika Cwir | July 28, 2006 at 07:18 PM