The trademarking of an avatar

aimeewebertm229Late last year, Grossman Tucker Perreault & Pfleger announced that they had successfully registered as a trademark the multidimensional likeness of Aimee Weber, the Second Life avatar of New York content-creator and businesswoman Alyssa LaRoche.

While GTP&P referred to it as a groundbreaking decision (it is — groundbreaking is another word for ‘first’), it is not actually an astonishing, surprising or unexpected result. It’s an obvious application of existing trademark law, in fact.

What we have here is a trademark image in a new medium, but that isn’t particularly special. At some point in the future, someone is going to trademark a projected 3D holographic logo for the first time, and that will indeed be groundbreaking, but is still an obvious extension of the trademark system into new media and expressions.

What’s interesting here is that the trademark is, essentially, a personification. LaRoche’s avatar appearance, for all intents and purposes is her, which actually makes the avatar-as-a-trademark a good deal more ordinary than a lot of the existing trademarks that have been registered.

As a random example, the US Patent and Trademark office granted trademark registration for THE FORMULAR FOR KOFI’S CONCEPT IS SIMPLE. THE PAST + THE PRESENT = THE FUTURE ALL THROUGH HISTORY IT HAS BEEN THE PAST AND THE PRESENT COMING TOGETHER TO BECOME THE NEXT BIG THING” FOR EXAMPLE NEGRO SPIRITUAL COMBINED WITH BLUES BECAME R & B ELEMENTS OF JAZZ AND BIP BOP BECAME RAP RAP COMBINED WITH OLD R & B SONGS BECAME HIP HOP NOW HIP HOP COMBINED WITH KOFI’S RECIPE = KOFRICA “THE NEXT BIG THING”®, misspelling included. Nope, we’re not kidding.

There’s literally hundreds of examples like that in the trademark database, including lengthy platitudes and sections of biblical scripture. Next to those, a 3D avatar seems positively mundane.

Benjamin Duranske, a respected commentator on law as it applies to virtual environments, said of the filing that, “McDonald’s trademarked Ronald, so there is no reason an avatar — for many users, a computer generated representation of their brand — could not also be trademarked. The rather distinct appearance of avatar ‘Aimee Weber’ is indisputably identified with the brand. And ‘Aimee Weber’ is as much a Second Life icon as she is a person you chat with at a virtual coffee shop or hire for design work; the little “TM” just makes that official.”

And LaRoche now has considerable legal leverage if someone wants to misuse her image to brand or promote unrelated products or services, or simply to mimic her for malicious purposes.

It will be interesting to see if any other people move to follow suit.

Comments

  1. I was interested in this then, and still am. Because I believe in the poor-man's copyright. I believe that all avatars, especially ones with a permanent web/internet presence, ARE copyrighted.
    Sure they are not officially registered with the offices, but I believe each avatar (the person behind it) could and would have a case if someone else started ripping off their avatar (and more importantly, that avatar's branding and image).

    Same example with music. A musician records a song, and posts it all over the internet. He owns his song, and the rights to his song. Same goes for someone's owned avatar (and all the business that comes with that avatar)

  2. TateruNino says:

    Technically the image can enjoy copyright protection and (if used commercially) enjoys protection as an unregistered trademark. These can be overturned if someone can show that they used it first, or blur the lines, or show that it was derived from their own work. A registered trademark squashes those challenges.

  3. I was interested in this then, and still am. Because I believe in the poor-man's copyright. I believe that all avatars, especially ones with a permanent web/internet presence, ARE copyrighted.
    Sure they are not officially registered with the offices, but I believe each avatar (the person behind it) could and would have a case if someone else started ripping off their avatar (and more importantly, that avatar's branding and image).

    Same example with music. A musician records a song, and posts it all over the internet. He owns his song, and the rights to his song. Same goes for someone's owned avatar (and all the business that comes with that avatar)

  4. TateruNino says:

    Technically the image can enjoy copyright protection and (if used commercially) enjoys protection as an unregistered trademark. These can be overturned if someone can show that they used it first, or blur the lines, or show that it was derived from their own work. A registered trademark squashes those challenges.

    Addendum: Most of our avatars, while the combination itself is unique to us, are derived works, in copyright terms. My hair is made by one person, my dress by another, and they retain their rights. That those items are sold to us for the purposes for which we're using them blurs the lines a little.

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