How to avoid intellectual property issue.

[Jerilyn Acajou]

Hello,  😇

             I experienced item blocked on the market place by intellectual property policy. http://wiki.secondlife.com/wiki/Intellectual_Property

             So I open this topic for anyone can give me an advice.
             My question.
             1. What if I create my own item and put to sell on MP. 

                 - my item is 90% look like real world item

                - I name it to something else ( not use their trademark, brand, name of that item in real world)  for example  I put a big bike motor cycle on MP that look like harley davidson model. but I name it  "Big Bike"  on market place.  
              Will this item break intellectual property policy?

           2. Why some item that has the appearance and name just like real world trademark,  but still available on market place and some were blocked. (just think that it's unfair)

           3. I just want to do everything correct and legal. so if we have items that be inspired from real world and created our own.  what is the good practice to put those items on the market place

 

Thank you. 😚

Edited May 4, 2021 by Jerilyn Acajou

[animats]

There's a good Nolo Press book on this.

Harley-Davidison is known for being very aggressive in enforcing their intellectual property rights. Over 10% of their revenue, and probably a higher fraction of their profits, comes from non-bike merchandise. Using their logo is totally out; that's a clear trademark violation.

Harley has trademarked the sound of their bikes, and that's been litigated against Honda, although both sides eventually gave up arguing over that.

On the other hand, there are lots of big bikes that look similar to something Harley has made. You can't copyright a working part, which is why there are third-party auto parts. There are design patents, but they have a short life.

This whole area is really complicated.

[Skell Dagger]

1 hour ago, Jerilyn Acajou said:

 1. What if I create my own item and put to sell on MP. 

                 - my item is 90% look like real world item

                - I name it to something else ( not use their trademark, brand, name of that item in real world)  for example  I put a big bike motor cycle on MP that look like harley davidson model. but I name it  "Big Bike"  on market place.  
              Will this item break intellectual property policy?

Yes it will. If you read the Intellectual Property Policy that's at the link you gave, you will see that this example falls under 'trade dress' -

1 hour ago, Jerilyn Acajou said:

 2. Why some item that has the appearance and name just like real world trademark,  but still available on market place and some were blocked. (just think that it's unfair)

Because nobody has flagged (reported) those items as yet, or they have been flagged and removed and the creator has relisted them. Linden Lab don't have enough staff to dedicate several of them to policing the Marketplace continuously, so they rely on users to flag items. Dakota Linden explained this here, during a discussion about keyword spam.

1 hour ago, Jerilyn Acajou said:

3. I just want to do everything correct and legal. so if we have items that be inspired from real world and created our own.  what is the good practice to put those items on the market place

Simply follow the Intellectual Property Policy guidelines at the link you gave and that I've highlighted in the screenshot above.

Edited May 4, 2021 by Skell Dagger

[Jerilyn Acajou]

Thanks Animat.  it's really complicated.  

Thanks Skell : I've one more question
 as intellectual property policy stated.
"If you're creating objects inspired by real-world objects, take care that your objects have an original appearance and shape. That's the best way to avoid trade dress issues."

"Be wary of imitating distinctive and recognizable product appearances. For example, the well-known appearance of the Eames lounge chair and ottoman from Herman Miller is protected under trade dress law."

the 1st quote suggest to have an original appearance and shape but 2nd quote suggest to avoid distinctive and recognizable product appearance.   
Seem they suggest opposite way ,  Really confuse me.  

So if I create item inspire by real-world but make something different in way of shape, texture,  item name . etc...  as yes it's might be 50%+ look like real-world.  Will it be ok?

Thanks

 

[Finite]

7 minutes ago, Jerilyn Acajou said:

Thanks Animat.  it's really complicated.  

Thanks Skell : I've one more question
 as intellectual property policy stated.
"If you're creating objects inspired by real-world objects, take care that your objects have an original appearance and shape. That's the best way to avoid trade dress issues."

"Be wary of imitating distinctive and recognizable product appearances. For example, the well-known appearance of the Eames lounge chair and ottoman from Herman Miller is protected under trade dress law."

the 1st quote suggest to have an original appearance and shape but 2nd quote suggest to avoid distinctive and recognizable product appearance.   
Seem they suggest opposite way ,  Really confuse me.  

So if I create item inspire by real-world but make something different in way of shape, texture,  item name . etc...  as yes it's might be 50%+ look like real-world.  Will it be ok?

Thanks

 

SL doesn’t protect creator content so I wouldn’t base anything on what the say on their wiki outside of taking it as mere suggestion. I would read copyright law and in your case specifically the parody clause portion.

Edited May 4, 2021 by Finite

[Skell Dagger]

11 minutes ago, Jerilyn Acajou said:

Thanks Animat.  it's really complicated.  

Thanks Skell : I've one more question
 as intellectual property policy stated.
"If you're creating objects inspired by real-world objects, take care that your objects have an original appearance and shape. That's the best way to avoid trade dress issues."

"Be wary of imitating distinctive and recognizable product appearances. For example, the well-known appearance of the Eames lounge chair and ottoman from Herman Miller is protected under trade dress law."

the 1st quote suggest to have an original appearance and shape but 2nd quote suggest to avoid distinctive and recognizable product appearance.   
Seem they suggest opposite way ,  Really confuse me.  

So if I create item inspire by real-world but make something different in way of shape, texture,  item name . etc...  as yes it's might be 50%+ look like real-world.  Will it be ok?

Thanks

It can appear to be confusing wording, especially if English is not your first language.

"Original appearance" in the first quote should be taken as reading "not looking like any other specific thing". Your item must not look as if it is a copy or a very close imitation of a real world brand.

"Distinctive and recognizable" in the second quote should be taken as reading "visually recognisable as belonging to a specific product or company". For example, if you were to create a brand of soda, call it 'Cherry Pop' and use the distinctive Coca Cola font for its logo, it would make people think of Coca Cola. If the item makes you think of a specific brand, simply by looking at it, then it's taking advantage of that brand's trade dress and your familiarity with it to make that connection.

Copyright law is, as Finite says, much less simple than that. It's a very complex thing with many nuances, but that's a very very simplified version of what trade dress entails.

[Jerilyn Acajou]

1 minute ago, Skell Dagger said:

It can appear to be confusing wording, especially if English is not your first language.

"Original appearance" in the first quote should be taken as reading "not looking like any other specific thing". Your item must not look as if it is a copy or a very close imitation of a real world brand.

"Distinctive and recognizable" in the second quote should be taken as reading "visually recognisable as belonging to a specific product or company". For example, if you were to create a brand of soda, call it 'Cherry Pop' and use the distinctive Coca Cola font for its logo, it would make people think of Coca Cola. If the item makes you think of a specific brand, simply by looking at it, then it's taking advantage of that brand's trade dress and your familiarity with it to make that connection.

Copyright law is, as Finite says, much less simple than that. It's a very complex thing with many nuances, but that's a very very simplified version of what trade dress entails.

Thank Skell :  very clear,  I guess this is just for item that created for sale (make money and profit) only.   excluding own use  or sharing items?

[Skell Dagger]

1 hour ago, Jerilyn Acajou said:

I guess this is just for item that created for sale (make money and profit) only.   excluding own use  or sharing items?

Now you are getting into a 'grey area'. I would err on the side of caution and not breach trade dress at all, regardless of whether the item is for sale, for your own private use, or for sharing with anyone else.

When there is a rule to follow - a line that you must not cross - some people will go as close as possible to that line, right to the edge of the other side of it, and they will push the boundaries of that line to see how far they can go. Example:

That is why those 'lines' are not given in more detail: some people will push and push. Best to just stop where you can see that the line starts.

[Jerilyn Acajou]

3 hours ago, Skell Dagger said:

Now you are getting into a 'grey area'. I would err on the side of caution and not breach trade dress at all, regardless of whether the item is for sale, for your own private use, or for sharing with anyone else.

When there is a rule to follow - a line that you must not cross - some people will go as close as possible to that line, right to the edge of the other side of it, and they will push the boundaries of that line to see how far they can go. Example:

That is why those 'lines' are not given in more detail: some people will push and push. Best to just stop where you can see that the line starts.

One good thing in SL is we can do what we can't in RL, fly , drive, ride, live ,etc...    we have many favorite items in RL, so regret 😞  if we are not allowed to create, sell, buy, share, play them in SL by the reason they look like trademark items in real world.  And I do respect this rule.

thank you guys once again,   I do believe I can create my own item and also better than those real-world items. ❤️

[RoxyCyn]

It's great that you take this seriously in-regard to trademarks; not many do when it comes to names and logos.  Trademark owners can locate product violations by sending an avatar in-world and shopping, but you can see this is not a very effective use of time and resources. More effective is searching keywords across the internet and MP is out there with many other real and virtual markets. Using H-D as the example, all model names are trademarked: Sportster, Fat Boy, Wide Glide, Slim Bob, Road Glide, etc.  So, it's not just limited to the manufacturers name and logos. Animats is correct regarding H-D sales and I've seen some reports in some years as high as 25% on 'stuff', not motorcycles.  You can see why they aggressively protect their brand.  

Stay away from any trade names and sales names that represent a manufacturer.  Make-up your own unique name that people will recognize as being your version, variety or take on that particular item.  Most of all, create, make stuff, build and have fun!

 

[Jerilyn Acajou]

Hi thanks RoxyCYn

  What if we create an item that inspired by RL thing,  But modified to another item but there're some part that look like RL thing (shape, apperance).  Then we name it another name or general name, no brand name , no logo, no trademark ,

by this way,  Will it be considered illegal by intellectual property policy?
 

Edited May 6, 2021 by Jerilyn Acajou

[Alwin Alcott]

12 minutes ago, Jerilyn Acajou said:

Hi thanks RoxyCYn

  What if we create an item that inspired by RL thing,  But modified to another item but there're some part that look like RL thing (shape, apperance).  Then we name it another name or general name, no brand name , no logo, no trademark ,

by this way,  Will it be considered illegal by intellectual property policy?
 

you can of couse keep going on, but also try to understand the posts above you... again you want to enter a grey area. But if you want to take risks, please go ahead, but if you get  DMCA filed on you it gets a RL legal issue and cán bring you in serious RL trouble, (lawyers/courts/fines or worse) your choice.

Keep this advice from Skell in mind.... what you answered with a "thanks"

Edited May 6, 2021 by Alwin Alcott

[Skell Dagger]

12 minutes ago, Jerilyn Acajou said:

Hi thanks RoxyCYn

  What if we create an item that inspired by RL thing,  But modified to another item but there're some part that look like RL thing (shape, apperance).  Then we name it another name or general name, no brand name , no logo, no trademark ,

by this way,  Will it be considered illegal by intellectual property policy?
 

As I've already mentioned, it's highly likely that this will fall under Trade Dress, breach of which is prohibited in SL by the ToS. I suggest that you research what Trade Dress is. This link gives a good explanation, as well as some examples of Trade Dress, which I've also listed below.

Trade dress is the aesthetic or visual elements of a product or its packaging.  Trade dress has been defined as the overall appearance of an object including size‚ shape‚ color‚ textures‚ or graphics. In order to better market a product‚ manufacturers often design the product or its packaging to catch the eye‚ appeal to consumers‚ and appear distinct from other similar products. Consumers may come to associate certain colors‚ designs‚ and patterns with specific products.

• the shape of Coca-Cola and Voss bottles;
• the red-sole of a Christian Louboutin shoe;
• the red tab on Levis jeans;
• the shape and colors of IHOP restaurants;
• the colors of the Reese’s Peanut Butter Cups wrapper;
• the red sealing wax on a bottle of Makers Mark;
• the fish shape of Goldfish crackers; and
• the shape of a Hershey Kiss chocolate.

[Jerilyn Acajou]

Hi,    I'm just curious and try to not touch the grey line,  as I know for now. to be safe from grey line is

1. no brandname, no logo, no model name, no trademark, and avoid the same  No trademark. 

and 

2.  item must not look as if it is a copy or a very close imitation of a real world brand.

 

 

[Sid Nagy]

Look at it from the other side:
When Harley Davidson finds that one of your bikes looks too much like one of their products it is up to them to file a complaint.
As long as they don't do so, your good. If they ever do, write a sorry note, and take the object down. You will most likely not end up in court.
The fact that it has 2 wheels, handle bars and a tank is not enough to file complaints IMHO.

I would not try to be more catholic than the Pope in this case.
Streamlining models puts all the RL bike and car designs in a certain direction.

If you think it is different enough from the bike you 'quoted' from, your good.
If everyone who sees your bike immediately says that is a Harley Davidson model ......... you should rethink, even in SL.

Edited May 7, 2021 by Sid Nagy

[Jerilyn Acajou]

To be clear,  actually it's nothing about Davidson Brand.

I created Millennium Falcon Space Ship.  and it was unlisted  from market place. 😋
https://1drv.ms/v/s!Am7Lg3UW7uqijp1sHBtRO2Bx9Gcfsw?e=JRXHL8

It's exactly the same name and appearance in the movie.

As I wrote,  I'll create another one by my own idea from scratch. but a little inspiration from that ship too.☺

https://1drv.ms/v/s!Am7Lg3UW7uqijvZUhV_3aTRZdzthNQ?e=1USeu1

Anyway, I like my new one more. but wonder that the name I give it just the same as another ship from somewhere in the internet. 

Edited May 7, 2021 by Jerilyn Acajou

[Chic Aeon]

There are TONS of Volkswagon  Beetles and Volkswagon buses on the marketplace and sold all the time in events.  They are not NAMED as such but instead something like "sufrer buggy" or whatever.  I think the NAME thing was what got your listing deleted. There used to be a test that people uploading mesh had to take and in that test LL was very specific about the naming of an item in that "looks just like a VW beetle" kind of thing.   There are also TONS of  coke machines and bottles with names on them like "cokka cola"  or something similar. They also are seldom if never taken down.  

 

Trade dress is certainly a legal issue but putting some extra fins and changing colors and logos is probably enough to keep you out of trouble. In actuality LL typically does nothing at all unless there is a complaint.  So figure out  where you moral compass lies and go with that.  If creators were never allowed to make items that looked somewhat like real world items we would have no economy at all.    

[Skell Dagger]

8 hours ago, Jerilyn Acajou said:

I created Millennium Falcon Space Ship.  and it was unlisted  from market place. 😋
https://1drv.ms/v/s!Am7Lg3UW7uqijp1sHBtRO2Bx9Gcfsw?e=JRXHL8

It's exactly the same name and appearance in the movie.

That explains it. The Walt Disney Company owns all Star Wars properties, and you will find nobody who protects their trademarks and copyrights more zealously than The Mouse.

This may be worth a read: https://legalmatterblog.com/2015/04/27/may-the-4th-be-with-your-brand-a-legal-guide-to-making-star-wars-tributes/

Edited May 7, 2021 by Skell Dagger

[Guilford Newman]

Is there any way to know why ( and may be who ) reported a couple of items I made out of prims bought on MarketPlace. I payed attention not to sell those items full-perm as asked by the sellers of the constitutive prims. Is it a question of naming ? 

[Jerilyn Acajou]

Did you resell those items?

Are they full perm?

Have you modify , add on something else to those items and put to MP?

Usually you cannot resell full perm items as is, but you have to modify them (change appearance, add script, etc...) and sell them as COPY or MOD but not FULL PERM.

[Rowan Amore]

1 hour ago, Guilford Newman said:

Is there any way to know why ( and may be who ) reported a couple of items I made out of prims bought on MarketPlace. I payed attention not to sell those items full-perm as asked by the sellers of the constitutive prims. Is it a question of naming ? 

No, LL won't divulge who flagged your item  but perhaps why it was flagged.  

[Pixieplumb Flanagan]

On 5/7/2021 at 3:17 PM, Chic Aeon said:

 There are also TONS of  coke machines and bottles with names on them like "cokka cola"  or something similar. They also are seldom if never taken down. 

I think I recall reading that Coca Cola weren't bothered about second life, since obviously we don't actually drink anything here, and it's essentially free advertising!