Early this morning, the head of a prominent company in Second Life received an email from copyrightagent@lindenlab.com It started off,

Linden Lab has received notification from counsel for [removed], that you have infringed its rights in the [removed] trademark in the Second Life environment. In particular, [removed] has complained about your use of the [removed]
trademark at the [removed] located at [removed].

Due to ongoing discussion with people involved, I’m removing references to the companies involved, pending possible litigation or other actions. I will simply note that the company head believes that there is no reasonable likelihood of confusion between his company which does business solely within Second Life and the company alleging the trademark infringement which does not conduct business.

He has attempted to contact the company, as have I. I have received no response from the company alleging the trademark infringement, nor its counsel. To the best of my knowledge, the company head has not either.

Linden Labs email continues,

Linden Lab respects the rights of both Second Life residents and
trademark owners. Accordingly, we ask that you discontinue using the
[removed] trademark in the Second Life environment. Please remove
all instances of it at the [removed] and please inform
us of a different non-infringing name for your group [removed]
If you do not do so within forty-eight (48) hours, please be
aware that Linden Lab intends to expeditiously remove references to
[removed] at [removed] and to disable access to the
[removed] group.

The head of the company wrote that he cannot, at this point, login. If that is the case, then there is no way that he could remove the alleged infringing trademark, even if he wanted to. In addition, groups can only be renamed by Linden Labs, so neither he, nor other members of the group can be changed by them. Instead it will need to be changed by Linden Labs itself.

The email ends with

Please direct any future communications regarding this matter to counsel
for [removed]

It is worth noting that these 48 hours during which the head of the company has been asked to respond take place during the weekend, when he is unlikely to be around much. Even more significantly, the counsel for the firm alleging the trademark infringement is not in the office today. I called to ask for comments on this. I expect he won’t be in the office until Monday.

So, Linden Labs is asking for action take place on a disputed trademark during a time in which the parties alleging the infringement are not even available. Linden Labs would be well advised to make their requests a little more reasonable in terms of timeliness, such as allowing the alleged infringer two business days to respond, or perhaps even two business days after a response from the company alleging the infringement.

Beyond that, this raises serious issues about the terms of service that Linden Labs publishes. In specific,

1.2 Linden Lab is a service provider, which means, among other things, that Linden Lab does not control various aspects of the Service.

You acknowledge that Linden Lab is a service provider that may allow people to interact online regarding topics and content chosen by users of the service, and that users can alter the service environment on a real-time basis. Linden Lab generally does not regulate the content of communications between users or users' interactions with the Service. As a result, Linden Lab has very limited control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of various aspects of the Service.

Yet in this case, it appears that Linden Lab is attempting to exert a very specific control over content by threatening to remove the alleged trademark infringement from property of the company owner in Second Life. In doing so, Linden Lab would demonstrate itself not to be a disinterested service provider, but taking the side of one company over another in a trademark infringement. I believe this would set a very dangerous and damaging precedent for Linden Lab.

In addition, there are concerns about section 3.2

3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.

Users of the Service can create Content on Linden Lab's servers in various forms. Linden Lab acknowledges and agrees that, subject to the terms and conditions of this Agreement, you will retain any and all applicable copyright and other intellectual property rights with respect to any Content you create using the Service, to the extent you have such rights under applicable law.

It would seem as if Linden Lab is not respecting the copyright of the member by threatening to remove parts of it simply based on an allegation of infringement that has not been properly argued. That section continues,

You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your Content hereunder; (ii) you are solely responsible for, and Linden Lab will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using the Service, including without limitation any legal consequences relating to your intellectual property rights; and (iii) Linden Lab's acknowledgement hereunder of your intellectual property rights in your Content does not constitute a legal opinion or legal advice, but is intended solely as an expression of Linden Lab's intention not to require users of the Service to forego certain intellectual property rights with respect to Content they create using the Service, subject to the terms of this Agreement.

Yet in acting unilaterally on an unproven allegation of trademark infringement, Linden Lab would appear to be taking some responsibility in enforcing trademark concerns, independent of any due process. As such, it would seem as if they are opening themselves up to further liability by taking such an action.

It is my hope that Linden Lab, the company alleging the trademark infringement, their counsel, as well as representatives of the company alleged to have infringed upon a trademark can, in the words of the original cease and desist email “resolve this matter amicably”. However, so far the actions of Linden Lab as well as the counsel for the firm alleging the trademark infringement do not appear to make any effort to resolve the matter amicably.

I continue to seek comment from Linden Lab, the company alleging the trademark infringement and their counsel. I will keep people informed of developments.

I also want to fully disclose that I am not disinterested in this case. At the time of the cease and desist letter, I owned approximately 15,000 shares of the Second Life company. The market value of that investment in U.S. Currency is approximately $17. In addition, the head of the company, in gratitude for my writing about this and sharing with him my thoughts on what I would do in his case, has given me approximately 58,000 shares of the company, worth about $66, making my current holdings in the company worth approximately $83.