• 23Apr

    4.4 Without a written license agreement, Linden Lab does not authorize you to make any use of its trademarks.

    So reads the summary sentence for the now-infamous trademark clause in Second Life’s Terms of Service. That unfortunate choice of words, and the similar phrase contained in the full text for that clause, might just be the source of the confusion that has myself and other concerned Residents up in arms.

    The full text of section 4.4 reads (emphasis mine):

    You agree to review and adhere to the guidelines on using “Second Life,” “SL,” “Linden,” the Eye-in-Hand logo, and Linden Lab’s other trademarks, service marks, trade names, logos, domain names, taglines, and trade dress (collectively, the “Linden Lab Marks”) at http://secondlife.com/corporate/brand and its subpages, which may be updated from time to time. Except for the licenses expressly granted there or in a separate written agreement signed by you and Linden Lab, Linden Lab reserves all right, title, and interest in the Linden Lab Marks and does not authorize you to display or use any Linden Lab Mark in any manner whatsoever. If you have a written license agreement with Linden Lab to use a Linden Lab Mark, your use shall comply strictly with that agreement’s terms and conditions and use guidelines.

    Here again we see “does not authorize”. But how are we to interpret it?

    To a lawyer, it probably means, unambiguously, that Linden Lab does not grant special permission for you to use its trademarks. It’s not a restriction on your rights, just letting you know that you don’t get extra permission simply because you pressed “I Agree”.

    To a layperson, though, it can easily be interpreted to mean that Linden Lab will not allow you to use its trademarks. You can’t write or say any of Linden Lab’s trademarks, anywhere, ever, in any form, or Linden Lab will ban you faster than you can say “nominative fair use”.

    I’m sure it’s a perfectly benign phrase, when translated into plain speech. Heck, they even granted us a license to use “SL” and “inSL”! Linden Lab’s General Counsel is probably utterly baffled as to why we’re not genuflecting and thanking LL for its supreme generosity.

    But, in general, we’re not lawyers, and we’re not fluent in the twisted dialect known as Lawyerese. To many (if not most) of us, it reads as a restriction of our rights, and a threat of legal action. And as Residents watching the gradual “crackdown” on various freedoms we had enjoyed in Second Life, we’re especially prone to interpret Linden Lab’s legal moves as being hostile and restrictive, even if they were not intended to be.

    There is one sore point, though, that isn’t directly attributable to poor communication: the “taking-back” of the phrase, “my Second Life”. Linden Lab doesn’t want us to talk about “my Second Life” or “our Second Lives”, because of the potential for confusion and/or genericide. That issue is a legitimate concern on the part of Linden Lab, as well as a legitimate complaint on the part of the Residents.

    However, I’m willing to find an alternate phrase (“my virtual life,” maybe?) that does not have the potential to damage Linden Lab’s marks. And just maybe, Linden Lab will be willing to find an alternate phrasing that is less prone to being interpreted as overtly restrictive. Then maybe we could put this whole mess behind us, and get back to living our virtual lives.

    Posted by Jacek Antonelli @ 8:29 pm


9 Responses

  • IYan Writer Says:

    It’s funny – they themselves are to blame for possible trademark damage for choosing a loaded name that lends itself to descriptive use. If they had picked something else, less descriptive, there wouldn’t be a problem (“my Twinity”?? no way).

    Local story: our first and largest mobile operator is called “Mobitel”. The name has become a synonym for mobile phones here – you talk on your “mobitel”. Far from banning it, they embrace it and had cited it as evidence of their success.

  • Rheta Shan Says:

    Dear Jacek, I am really impressed to what depths you are willing to wade through legalese to get to the bottom of this issue. I hope you’ve got good waders on, lest the muck gets really icky :).

    I agree entirely with you LL never meant to curtail usage of their trademarked terms in a general fashion. They have been repeating this over and over since they have presented the revised brand guidelines. But the issue at hand never was the Lindens forbidding us to use « Second Life » or « SL » et al, except for commercial purposes without license, and when it might dilute the brand (hence the crackdown on sites using the terms in their name or URL to promote themselves and their services) , nor was were we meant to pepper every mention of them with trademark signs.

    Yes, some of us did attack LL on those grounds because it made them an easy target. I plead guilty on that count and looking back, I wish I hadn’t done it. It diluted the issue, with people thinking this was about using the trademarked terms at all, when it was in fact about how we are meant to use them.

    Because LL have published far reaching guidelines for « Proper Reference to Linden Lab’s Brand Names in Text », which are part of the brand guidelines, and as such are subject to observance by any resident of SL under ToS clause 4.4. They say (quote edited slightly to shorten it) :

    Always follow a Linden Lab brand name with an appropriate generic noun for at least your first reference to the brand name. A “generic noun” is a common noun and not a proper noun, trademark, or brand name. […] After the first reference, use an appropriate generic noun after the Linden Lab brand name as often as possible. Never use the brand name as a generic noun or verb, and never use it in the plural or possessive form. […] When providing your Second Life contact information, use an appropriate generic noun after the Second Life or SL brand names […] Always capitalize and spell Linden Lab’s brand names exactly as they are shown here, and do not abbreviate them or alter their spelling, spacing, hyphenation, or punctuation.

    The FAQ and clarifications contribute examples to this, the best know being « do not write “my Second Life” », but this is just one application, not an isolated recall of one single phrase. All of the above rules apply all the time, to any writing according to LL, and as clearly stated in LL’s last clarification, they will indeed ban residents, albeit after a warning, who do not observe these rules in their off-world activities.

    Now I for one strongly object to bending backwards and construing strange and insipid phrases à la « my life in the Second Life world », or maintaining a blacklist of non acceptable phrases on what, when all is said and done, is a personal web based editorial column. It as matter of free speech and freedom of the press in the most general sense to me (I’m not an US citizen, hence the limitations of the First Amendment have no relevance to my case whatsoever; and no, I did not surrender all my rights as a citizen of a EU country when I signed a service contract with a Californian company either). I am so not going to let some company lawyer in a software service start-up dictate to me how I publish about what I think is might be the next revolution in human society, just because he says he can and will get at me without having recourse to the law.

    That’s about it as far as I’m concerned, though I still think this should be an issue to anyone who happens to blog or otherwise publish on the matter. Or, as the French say : point final.

  • Akela Says:

    I don’t care why they’re doing it, I’m just flabbergasted by how little they trust their constituents. It always baffles me when I see companies try to stifle the creative urges of their customers, who end up creating better and more effective advertising for their product than anything the parent company could come up with on their own. LL should be glad that people care enough of their ‘second lives’ to want to write about them and defend them to others.

    Instead, LL does things like this. Whatever; I’m just gonna use the picture I Photoshopped up of my OWN eye in my OWN hand to represent SL.

  • Sougent Harrop Says:

    It’s possible that the phrase means what you think, but only a lawyer could say for sure. I certainly take it for it’s apparent meaning which is we can not use their trademarks unless it is as outlined in the guidelines or unless you have a written agreement with LL.

    Seems pretty clear to me.

    As for the phrase “my second life” and variations on that phrase, I think that regardless of what they wrote, it’s fair use and I really don’t think they can or will go after people using it.

  • Veronique Lalonde Says:

    I’m not a lawyer and don’t play one on TV, although I did write the LSAT once and got a good score. Still, the legalese does look to me like “no use whatsoever.” Seems like the legalese could be clearer, even if it’s still legalese. If they want us ordinary people to understand this, we shouldn’t need a lawyer to tell us what it means. After all, the vast majority of users of these terms are bloggers who aren’t making money from their use.

  • Frans Says:

    I hereby grant you the right to freely use the word Esselle.

  • Dale Innis Says:

    So yeah, that’s fine, they don’t authorize me to display or use their various marks in ordinary noncommercial speech since after all I don’t *need* their authorization in order to do that, at least not as far as the relevant trademarks laws are concerned. It doesn’t say “you may not use”, so even the fact that the TOS points at the branding guildelines doesn’t seem to *quite* make ever saying “Second Life” at all a TOS violation. For what it’s worth. *8)

    I don’t authorize you to speak my name in shadow, but that’s okay, since you don’t need my authorization to do so.

    The annoying part, to me, is that the TOS (which governs the activity of residents) directly references the Branding Guidelines, which (overreaching legalese aside) really only applies to commercial entities, or people attempting to make money in one way or another from LL’s marks. I don’t know why they felt that they had to do that, I think it was probably a mistake, and I’d love for them to undo it.

    To disagree slightly with Rheta: they have never said that they -will- ban residents who don’t follow the branding guidelines offworld, and who don’t respond to warnings. They’ve said that they reserve the right to, but I’m pretty sure that they have never said that they -will-. It’s a rather large difference, at least to my mind!

    On “my second life” (or even “my Second Life”), I have it easy in that I don’t think I’ve ever used the term. :) Partly because it reminds me of the shuddersome Windowsy “My Computer” and “My Documents”, and partly because my second life probably began sometime when I was like eight months old or whatever, when my life as a giant orange pterodactyl or equivalent began. My life in Second Life must be my several-dozenth life by now, even counting very conservatively. I expect the same is true of most people.

    And we can’t really fault them too much for being in the positiion of trying to claim what is clearly a relatively common noun-phrase. The people who picked “Second Life” and the people who are now in the position of claiming that it isn’t really a generic noun phrase at all are no doubt entirely different people. I’m sure the first lawyer that took a look at the company name from a trademark point of view quickly remembered a very important appointment elsewhere, and fled from the room! :)

  • Erbo Evans Says:

    Well, I did a “trademark scrub” on Evans Avenue Exit and LexxCore.com over the weekend, but there’s one thing I can’t change…the phrasing of the tagline for Evans Avenue Exit. If I do that, it’ll break the allusion I’m making in the first part of the tagline (to a well-known Volkswagen ad campaign), so I just stuck a “(R)” in there and let it go at that. If LL really wants my scalp for that, then I’ll just take my marbles and go play EVE Online. At least CCP doesn’t seem to have a chip on its shoulder about its trademarks.

  • Chimaera « Rheta’s World Says:

    [...] brand names are as unacceptable as any textual modification of said names. They forbid not only the much quoted « my Second Life » (you’re meant to write something along the lines of « my life in the SecondLife [...]