Blogger Strike?

An interesting set of circumstances are happening concerning the Linden Lab branding policy of their own product. There still remains some confusion about how to use the Second Life trademark on blogs.  Some people have begun to place trademark symbols behind the phrase “Second Life”(tm), others have changed logos completely. The issue has raised many eyebrows and even has started a three day blog strike with the goal of Linden Lab clarifying the practice for blogger’s. While I understand there may be confusion, and my position of this strike is, surprisingly, one that I’m in agreement with Prokofy Neva (for several reasons including the legal ones that Benjamin Duranske points out), I also feel that it’s hastily and will not prove successful in its result.

When talking about computer makers (Apple, Dell, Compaq) or cars (Toyota, Chevrolet) there’s not a need to place a TM by every single name.  You don’t see Apple or Toyota going after a bunch of bloggers talking about their product.  You don’t see tiny trademark symbols when the newspaper does a review of the new Apple Air Notebook.  Dell, Compaq or Chevy are not chasing blogger’s down for trademark violations in discussing their product.  They chase legitimate trademark violators (such as if this blog was called the Dell Computer Blog).  The same would apply to Second Life.  Linden Lab is not going to chase a person down for discussing Second Life without proper trademark notation.  They don’t have the man-power or legal team, and where’s the legal prescient for such action? It’s not like Linden Lab has shut everyone out for using their trademark, they have set up an application for you to apply to ensure that you are using the trademark properly (i.e. the Second Life Brand Center)!

I understand the argument, which is the policy for using the logo and trademarks of Second Life have changed (seemly) overnight.  While I respect many of the blogger’s who are participating in this strike, I disagree entirely.  I feel that those who are striking need a more concrete platform to stand on.  If a blogger feels that Linden Lab goes after them for the wrong reason, then strike.  Linden Lab has been more than flexible to work with those using IT’S OWN BRAND!  I’ve mentioned before, people put themselves in jeopardy when developing or creating a product using someone else’s brand name.  The person that owns that brand has the right to enforce it however they would like.  Some are mean and enjoy the attention.  Others are willing to work and ensure that their point is made clear by grabbing onto the major violators.

As for the strike? I think this is silly. Starting a strike on April 15th, 2008 for an American company with American employees is silly.  Why?  That’s TAX DAY! People’s schedules may have changed because they are dealing with something bigger – it’s called not getting railroaded by your government.  If you are going to go on strike, avoid striking on days like this and don’t start a strike because a person (in this case Robin Linden) missed her office hours on her countries tax day!  I understand that people would like to have clarification but you have an avenue to protect yourself until clarification comes.  Please USE IT! More importantly, show me examples of blogger’s being approached for violating the rules in the referenced TOS that seem overbearing. To this date I have not heard of any!

3 thoughts on “Blogger Strike?

  1. This is a complex issue. I agree completely that the strike is a pointless distraction. Worse, it may weaken any case those involved have, as the blogger strike is full of specious arguments and disorganized opinion.

    However, you are missing some important points about this policy change. Linden Lab is not merely attempting to enforce their Second Life trademark. Nobody will dispute that they should be entitled to trademark protection for their products and anyone who uses the words “Second Life” should respect Linden Lab property.

    But, consider that for the last 5 years, the residents of Second Life, not primarily Linden Labs, have referred to Second Life as “SL” (just as they refer to Real Life as RL). Linden Lab did not, until June of last year, apply for an “intent to use” on “SL”, a mark they (by their very application class 1B) claim that they have not yet used in their business. Just because there is a product “Second Life” does not instantly grant protection to its abbreviation (just as Dow Jones cannot make a blanket claim that businesses with DJ in their title are infringing). Then, by using a adhesion contract (their ToS) are prohibiting any of their residents from registering a business name or trademark which “contains” the two letters SL.

    It would be different if they had introduced this five years ago and made it clear that the letters SL were theirs under license. But, they did not. In fact, they publicly encouraged companies like SLBoutique, SLExchange, SLNN, CNN’s SL i-Reports and others while never, ever mentioning any possible claim to their name and businesses, nor registering their intent with the US Trademark office. Quite the contrary, the continual PR machine at Linden Lab has emphasized their unique IP policies which assure residents maintain ownership of their own creations, fueling an unprecedented investment of resident time with significant benefits to Linden Lab.

    So now, thousands of businesses have invested time and money in those brands, with a healthy pat of approval from Linden Lab. We ourselves have invested over USD$200K in the SLCN.TV brand, have released DVDs and credited excerpts of our footage has appeared on BBC television as well as ABC News and thousands of other places. By most trademark lawyer’s assessments (and we have paid a few for their opinions) there is a good chance that the US trademark office would not consider that there would be any possible confusion between SLCN.TV (a company that produces video content) and the Second Life software platform or any related Linden Lab product.

    Now, as a business, how do we (or any such business) protect our product and our investment made up to this time?

    Since we are disallowed (by their ToS) from protecting our own investment, we now have no protection against anyone who attempts to claim they are us, to steal our brand and use it for their own. We cannot even *attempt* to because Linden Lab has prohibited us by contract for engaging the very laws they are using to protect themselves.

    It takes our significant investment and reduces the past two years of time and effort to a value of zero. Meanwhile, 100% of our efforts have gone into providing products and services which serve Linden Labs interests, promote their product, and assist their residents.

    Sure, we have a personal stake in this, and you may think that we are foolish for investing such money in a platform like Second Life. But, to me it is no different than a company that invests money creating a reputation in Microsoft after market-products and suddenly would face having their IP co-opted by Microsoft because their products are “related to Microsoft Word”.

    Exactly how these issues will work out legally is a matter of opinion. But one thing is certain, they are biting the hand that feeds them and it causes the few truly committed after-market companies to consider whether they should have been so supportive of the Second Life platform to begin with. Many many of our peers, entirely loyal to Linden Lab until now, have suddenly been turning greater attention to other worlds and other opportunities.

  2. Really good points made Wiz. Before I respond, let me say that I do like the work that does.

    In my opinion, I feel that creating a brand with SL in the name is putting you in jeopardy of playing at the rules of someone else. If there’s anything that I think is foolish its that (and I call myself a fool because I have notes of so many “Second Life blah” ideas written down).

    With that aside, remember that Linden Lab has a few guidelines on using SL in the name. So, something like SLCN may be okay or not. While I understand people have put time and money into their brand, I also feel that Linden Lab aren’t draconian taskmasters. Yes, they have taken the trademark from you (which, as I’ve mentioned in a previous post avoids some major confusion and arguments in the community, see SLART), it gives you an opportunity to adjust.

    They seem willing and able to talk about the branding issue, my question is, while you have put all this investment in, how much would it take to adjust or do a name change (as many things do)?

    I don’t think that Linden Lab is biting the hand that has fed them because I think that more hands have bit them using the SL brand name. I think that Linden Lab is FINALLY biting back and taking control over their name before something major happens in the future. I think it’s a smart move and most business’ are not more than several years old (I could be wrong, but how old is SLCN?) In my opinion it’s a great move for change and for the future a great move to position yourself beyond just Second Life.

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