Stephen S. Wu-- SL: Legal Writer, swu@ckwlaw.com, (650) 917-8045, 166 Main Street, Los Altos, CA 94022

Minsky v. Linden Research Update

On July 29, 2008, artist and art critic Richard Minsky filed suit against against Linden Research, an avatar named Victor Vezina (named as a John Doe defendant), Linden Chairman Philip Rosedale, and former Chairman Mitch Kapor in Albany’s federal court. Mr. Minsky’s avatar in SL is ArtWorld Market, and he is attempting to enforce his SLART trademark used with his art magazine. He filed an amended complaint on August 14. I posted the court documents about the case on my Minsky v. Linden Research documents page. Mr. Minsky obtained a temporary restraining order against the defendants, prohibiting them from infringing on his mark. A hearing to determine if the court should issue a preliminary injunction will take place tomorrow.
On September 2, 2008, Ben Duranske wrote about a new virtual words trademark lawsuit in his article entitled “Linden Lab, Avatar ‘Victor Vezina,’ Philip Rosedale, and Mitch Kapor Sued Over SLART Trademark.” I will be giving a talk today at noon, PDT/SLT, the headquarters of the SL Bar Association in the Second Life(R) world and will cover the latest status of this case, which is filed in the U.S. District Court for the Northern District of New York in Albany. I posted the court documents about the case on my Minsky v. Linden Research documents page.

The art community faced controversy earlier concerning Mr. Minsky’s efforts to enforce his SLART trademark used in connection with his magazine covering and commenting on art in SL. Some artists contended that Mr. Minsky’s mark merely describes art in Second Life, and therefore cannot be protected. Mr. Minsky, on the other hand, states that his mark SLART has specific meaning besides describing art in SL, and says that he does not claim rights in “SL Art” (with the space between the two parts).

Mr. Minsky is not represented by counsel in the suit. The defendants have not yet made an appearance to defend the suit.

The case concerns Mr. Minsky’s federal registration in the SLART mark. He contends that Mr. Vezina started an art gallery in SL using SLART in its name (“SLART Garden”) and that the Lindens failed to respect his trademark rights by taking down the gallery. He identifies the Lindens’ failure to take down the store, despite promising to protect intellectual property rights, as fraud. He further contends that Rosedale and Kapor are personally liable for fraud by permitting the infringement to occur. Mr. Minsky seeks relief from the court in the form of an order for the Lindens to take down the gallery, an injunction against infringement, and treble damages.

On September 4, Mr. Minsky obtained a temporary restraining order (TRO) against the defendants, prohibiting them from infringing on his mark. A hearing to determine if the court should issue a preliminary injunction will take place tomorrow, September 10. A copy of the court’s order and Mr. Minsky’s application for temporary restraining order appear on the Minsky v. Linden Research documents page.

Mr. Minsky reported in his application for the TRO that Linden Research instituted proceedings before the U.S. Trademark Trial and Appeal Board to cancel his SLART mark. If the Lindens are successful in this proceeding, Mr. Minsky’s registration would be canceled and he would no longer be able to assert it in litigation against artist avatars on SL.
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