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Ssmiles

Is Using Famous Names Still a Violation of T.O.S?

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I ask this question because a fairly big proprietor of mesh and clothing has named thier shoes a very similar name to a very famous shoe designer.  That and the three staff members you can contact for help are named after famous designers.  Names that are clearly posted in their store.  

Isn't this against T.O.S?  

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It may fall under the category of being misleading or causing deception.

The relevant TOS section:

4.2 You agree to use an Account Name for the Service that is not misleading, offensive or infringing. You are responsible for activities related to your Account Name, and for keeping your password for your Account(s) secure.

You must choose an account name to identify yourself to Linden Lab staff in connection with your Account (your "Account Name") which may also serve as the name for your graphical representation within the Service under this Account (your "Avatar"). You may not select as your Account Name any name that Linden Lab determines may cause deception or confusion; may violate any trademark right, copyright, or other proprietary right or mislead other users regarding your identity or affiliation; or any name that Linden Lab determines in its sole discretion to be vulgar, offensive, or otherwise inappropriate. Linden Lab reserves the right to delete or change any Account Name that violates this paragraph, and will have no liability regarding the use, modification, or deletion of any Account Name.

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Right. According to the official policy on intellectual property:

Linden Lab responds to complaints that content infringes trademarked or celebrity material. Trademarked material includes trademarked logos, trademarked brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging. [...]

Please also be aware that celebrities have a "right of publicity", which means that they have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. [...]

To submit a notification, you
must
be the intellectual property owner or an authorized agent of the intellectual property owner. Do not submit an abuse report. Requests to remove allegedly infringing content are not handled through the abuse process.

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Thanks for the replies everyone.  That's kind of what I thought.  It's pretty blatent and their's is a pretty popular store with a lot of traffic.  I am kind of surprised LL hasn't stepped in.  It's also a little irritating that so many SL designers go out of their way to create a name of their own rather than using someone else's and this place is in such blatent violation.  

Anyway, thanks again for the responses.  

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Ssmiles wrote:

Thanks for the replies everyone.  That's kind of what I thought.  It's pretty blatent and their's is a pretty popular store with a lot of traffic.
 I am kind of surprised LL hasn't stepped in
.  It's also a little irritating that so many SL designers go out of their way to create a name of their own rather than using someone else's and this place is in such blatent violation.  

 

Anyway, thanks again for the responses.  

 

Read the last paragraph of Qie's post again. LL won't step in unless the actual owner of the trademark and/or proper name takes action. It isn't a violation of SL ToS. It's a potential violation of civil law, but the legal owner has to start that process.

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I can't help but think of the the words of the famous Chartist, S Smiles:

"Life will always be to a large extent what we ourselves make it"

 

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Dillon Levenque wrote:

It isn't a violation of SL ToS. It's a potential violation of civil law, but the legal owner has to start that process.

Did you read the ToS? In that case you must have missed the part Bree quoted.

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Yes, as has been pointed out, it is a violation of the TOS. It could also be a legal problem, depending on the country the person is in, whether or not the name is trademarked or otherwise protected, etc. It is up to the real store and designers to enforce their rights. It is a complex area of the law, but the basic principle is that a business should not use a name that would make the consumer think that the business is part of, connected with, or endorsed by another business.

I don't work in the area of intelectual property law. But I do know that if you are choosing a user name or business name (SL or elsewhere) that resembles an existing business or well known person you should get advise from an attorney who is knowledgable in IP law.

Marybeth

BLOG

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In the UK you may use your own name as a trading name whether someone else has the same name or not, however, I once knew someone with the surname "king" and he traded as "King's Computers".

 

He received a letter from the appropriate dept at Buckingham Palace or wherever it was, I forget.

 

He was allowed to be " King Computers" but not represent himself as supplying the crown with computers.

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Kwakkelde Kwak wrote:


Dillon Levenque wrote:

It isn't a violation of SL ToS. It's a potential violation of civil law, but the legal owner has to start that process.

Did you read the ToS? In that case you must have missed the part Bree quoted.

 

Well, you're obviously quite right about account names, but I took that section to be in reference to account names (avatar names) only. I gathered from the OP that this was a store or brand name, not the product creator's account name.

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Sassy Romano wrote:
In the UK you may use your own name as a trading name whether someone else has the same name or not, however, I once knew someone with the surname "king" and he traded as "King's Computers".

He received a letter from the appropriate dept at Buckingham Palace or wherever it was, I forget.

He was allowed to be " King Computers" but not represent himself as supplying the crown with computers.


Sassy,

I understand that the same is true in the US. I could open a store in RL or in SL with my real name, even if someone else was using that name, as long as I did nothing to make it appear that there was a connection.

I have heard that there was a case in Second Life in which a store sent a cease and desist letter to an SL store with the same name. It turned out, however, that the SL store owner had been using that name before the RL store, and therefore could continue to use it.

The situation described by the OP was not only a violation of the TOS but could be stopped by the RL store. One thing that I have heard about US law is that if you hold a trademark you must defend it or you might lose it. Certain large companies that have well known brand names send C&D letters and will even sue only to defend their brand name.

All of this is very complex, particularly given the international nature. I do not work in the intellectual property field so the above is not legal advice.

Marybeth

BLOG

 

 

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Just to clear things up, it's not the store name itself that is the same as a RL designer, it's the name of their products and help staff.  For example, they have help staff with names "Chanel"  "Dior"  "Prada", etc... clearly listed in their store (these are not the exact designer names they are using, they are using different names that are just as famous - I picked these just to give you an example) and the shoes they sell are named after a very famous shoe but it's simply spelled different.  For example, it would be like them selling "Polo" look-a-like shirts and calling them "Lolo" shirts or selling lipstick and calling it M.A.K.  instead of M.A.C.  The names they are using are pretty pretty obviously famous so it's definitely not a coincidence.  

I don't want to say exactly the names they are using because I'm not trying to throw anyone under the bus.  Suffice it to say though, the names they are using are from my understanding are in blatent violation of T.O.S.  I would assume they either aren't familar with T.O.S. or they don't give a crap.  I am guessing it's the latter.  

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HughJegow wrote:


Marybeth Cooperstone wrote:
the above is not legal advice.


Does that mean the advice is illegal?

Proper advice from a lawyer:

Matters of criminal law, including what is or is not illegal, depend upon the state or country. You should only rely on advice from an attorney familiar with your location, its laws, and your circumstances.

What I would say if I were not a lawyer:

I hope not.

The above is not legal advice.

Marybeth

BLOG

 

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Ssmiles wrote:

Just to clear things up, it's not the store name itself that is the same as a RL designer, it's the name of their products and help staff.  For example, they have help staff with names "Chanel"  "Dior"  "Prada", etc... clearly listed in their store (these are not the exact designer names they are using, they are using different names that are just as famous - I picked these just to give you an example) and the shoes they sell are named after a very famous shoe but it's simply spelled different.  For example, it would be like them selling "Polo" look-a-like shirts and calling them "Lolo" shirts or selling lipstick and calling it M.A.K.  instead of M.A.C.  The names they are using are pretty pretty obviously famous so it's definitely not a coincidence.  

 

I don't want to say exactly the names they are using because I'm not trying to throw anyone under the bus.  Suffice it to say though, the names they are using are from my understanding are in blatent violation of T.O.S.  I would assume they either aren't familar with T.O.S. or they don't give a crap.  I am guessing it's the latter.  

Thanks for the clarification. It still appears to be a violation of the TOS. Also, the designers' names are probably trademarked or otherwise protected. The store is in risk of being shutdown by Linden Labs. If not, the owner (in RL) could receive a C&D letter (cease and desist) from a designer's attorney, and will have to remove the designers' names. That could involve time and trouble.

The issue of similar, but not exactly the same, product names is complex and outside of my field. But it might be a problem.

I hope that the store owner reads this thread, and that others thinking about doing the same thing either don't do it or discuss the issue with an attorney working in the field of IP law.

Disclaimer: let's just say that I forgot what little I learned about this.

Marybeth

BLOG

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Ssmiles wrote:

Just to clear things up, it's not the store name itself that is the same as a RL designer, it's the name of their products and help staff.  For example,
they have help staff with names "Chanel"  "Dior"  "Prada", etc..
. clearly listed in their store (these are not the exact designer names they are using, they are using different names that are just as famous - I picked these just to give you an example) and the shoes they sell are named after a very famous shoe but it's simply spelled different.  For example, it would be like them selling "Polo" look-a-like shirts and calling them "Lolo" shirts or selling lipstick and calling it M.A.K.  instead of M.A.C.  The names they are using are pretty pretty obviously famous so it's definitely not a coincidence.  

 

I don't want to say exactly the names they are using because I'm not trying to throw anyone under the bus.  Suffice it to say though, the names they are using are from my understanding are in blatent violation of T.O.S.  I would assume they either aren't familar with T.O.S. or they don't give a crap.  I am guessing it's the latter.  

Gabrielle Bonheur "Coco" Chanel, Christian Dior and Mario Prada all had ancestors and relatives with those same last names, not to mention all the other people with those names who were never famous. Becoming famous didn't give them dominion over the last name that chance and fate assigned to them.

 

A name is only protected if it's a trademark, and if it's a non-unique name the trademark only applies to limited applications. Ralph Lauren has a trademark for the word Polo for clothing; Volkswagen has another trademark for the word Polo for automobiles.

Having a name the same as someone famous is only a violation if you actively suggest that you really are that person or are somehow associated with them when you aren't.

 

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It sounds like they are taking a gamble and targeting the audience of people who are overly concerned about having a 'designer' brand name. 

I suppose there could be a very small chance (probably miniscule) that the SL creator is connected somehow with the RL company, or that the SL creator has worked out some type of understanding or agreement with the RL company, or that the RL company is aware of it, but either figures it is a form of indirect advertising for them, or feel that the process for filing a DMCA or cease and desist is not worth pursuing. 

Ultimately I think it is up to the RL company to initiate any action taken about the names, though that doesn't make it OK for a creator to ignore the legalaties.

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You're right, if it's a shoe name, like the OP states, there's nothing about it in the ToS as far as I can find. It does show a lack of creativity though. :)

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Years ago when the real life Jenna Jameson had an avi in Second Life (and I was tarding around with the bunch who managed her sims), I met a gal named Jennnnna Jameson (who incidentally became the most famous SL pornstar of them all under the new name Linden Lab made her get). Jennnnna got this little missive from those pesky Lindens.

 

.Dear Jennnnna,

We are contacting you about your use in Second Life of the name and identity of the celebrity Jenna Jameson.

 

We ask that Second Life residents respect the rights of celebrities in their name and identity. We would ask that you stop using the names Jennnnna Jameson and Jenna Jameson within Second Life, we would also ask that you stop using photos or images of the celebrity Jenna Jameson.

 

Within the next two (2) days, please either reply to this email or submit a Support ticket (http://support.secondlife.com/), to the attention of Harry Linden, and please provide us with:

 

(1) A new first name for your Second Life avatar, and

(2) A new name for your Second Life group named “Jenna Jameson.”

 

Your new names must not infringe or be confusingly similar to the name Jenna Jameson. For example, the name Jennasis Jameson would not be acceptable.

Please also remove all photos and images of the celebrity Jenna Jameson and any other uses of her identity.

 

If you do not do so, we will disable your access to Second Life until you contact us with appropriate new names for your avatar and group. We will also remove all photos, images, and other uses of Jenna Jameson’s identity if you do not do so.

 

Thank you for your cooperation and assistance in this matter.

 

Sincerely,

H. Linden "

 

We had slapped Jennnnna on the cover of my magazine. "Our Jennnnnna is better than YOUR Jenna" hehehe. I'd fallen out with Jenna's land manager flunkies by then so they snitched Jennnnna out to the Lab. She changed her name to Emmanuelle and became SUPER famous in SL porn circles. Then, sadly, someone hacked her Emmanuelle Jameson account and its deactivated now. (B4 any forum rat decides to go hunting up some cheese. I can mention these names. They are all gone from SL).

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i was drunk and sleepy when  i picked my name years ago hehehe to get Linden Lab  to CHANGE  it for free would be a godsend lol but im not pretending to be michael jordan :P Jumpman Lives came out first anyhow. i'd prefer Jump Lane actually or Jumpy Lane. hehehe i might snitch my self out to nike and get the ball rolling lol

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If you mean by making alts then I cannot. Part of an agreement I made with Linden Lab during my surrender at the conclusion of The Great Watermelon War was the deactivation of all my "Jumpman"-named alts, the return of my Jumpmam Lane main, the return of my 5 or so alts not named "Jumpmam" and the prohibition from creating any other alternate avatars. I had to send in a photocopy of my driver's license. Hehehe. I'm ID verified with The Lab. Such are the fruits of my various infamies lol. Hi, Torley! :)

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Jumpman Lane wrote:

If you mean by making alts then I cannot. Part of an agreement I made with Linden Lab during my surrender at the conclusion of The Great Watermelon War was the deactivation of all my "Jumpman"-named alts, the return of my Jumpmam Lane main, the return of my 5 or so alts not named "Jumpmam" and the
prohibition from creating any other alternate avatars
. I had to send in a photocopy of my driver's license. Hehehe. I'm ID verified with The Lab. Such are the fruits of my various infamies lol. Hi, Torley!
:)

But did you have your fingers crossed when you promised? And does it count for SLV2?

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