But if I’m understanding correctly, that still means that noncommercial, news, etc. are not liable for _dilution_, even though they may be liable for infringement in some cases. Is that correct?

Thanks for going through all of this and giving your thoughts. Unfortunately, I am an anal-retentive lawyer. :) One thing I feel that I should point out is that the Code section you cite about what is not actionable (enumerating fair use, noncommercial use, etc.) is from 15 USC 1125(c)(4), so it only limits the enforceability of the remedy given in section 1125(c). That’s the Federal Trademark Dilution Act, and it only applies to actions for “dilution” of a “famous mark.” What we think about as garden-variety trademark infringement is actually under 1125(a), and there’s no list of exceptions like you set forth.

The similar limitation that 1125(a) does provide is that the infringing use has to be “in commerce” for it to be actionable. I won’t give you the whole boring lecture, but unfortunately for us there’s disagreement over exactly what “use in commerce” means in that section. Yeah, I know, lawyers muck everything up.

Anyway, I hate to correct people on their blogs, and generally I liked the post. I just wanted to make sure that we’re not giving people incorrect impressions of the law. Take care, Kit

It’s not hard to see that “Second Life” is a suggestive term, and it risks slipping into merely descriptive territory if they don’t watch it — especially as people become more familiar with the notion of virtual worlds in general. They don’t want to be fighting, much less losing, a battle over, say: “There.com, your second life online”.

So while I mock their heavy-handed PR approach, I do have some sympathy for their need to circle the wagons and protect their marks proactively. They cannot really afford to state that they’re not going to enforce their marks in the face of picayune “violations”.

I have to think that a non-commercial blog would have no trouble from them at all because, per Jacek’s notes, their mark is not imperiled by a non-rigorous reference there. A blog with a strip of GoogleAds alongside? That maybe be enough to pose a different situation entirely.

I, personally, decided to just comply, mainly out of fear my site comes up in a random Google search and they decide to ban me from ‘the world’. I have removed all references by name to the program and the company so I won’t be giving them the free advertisement they obviously don’t want.

Just my two cents.

First, I applaud you for going to the length as you did to self educate and raise awareness. Had the same been done earlier, some issue diluting mass hysteria might have been curtailed. The non-commercial use aspects of the policy have always been clear to me but as a friend pointed out, it was not made clear enough to everyone that does not deal with these issues on a regular basis.

Second, the bitch about these types of laws and rulings is that they often encourage over reaching, so as to demonstrate that all “reasonable” means were exercised to protect trademark. It would appear that if a trademark owner allows for anything less than the law permits, they in turn relinquish rights for the future. While the earlier release of fan site kits included basic TM clauses, they were lacking any link to the ToS and were somewhat shallow. I have challenged many (none have responded) to find one service offering that does not include the trademark and termination clauses in the Terms of Use/Service policies; my argument is that it is simply common practice and does set precedence.

This appears to me to be basic legalese clean up and one that is likely created by legal subtleties, and not an all out attack, affront or disregard for the vibrant Second Life community. I do agree the communication and delivery could have been better and more in tune with the community at large, but that is a subject for another discussion.

As far as I could see it made almost no difference, apart from giving assurance(?) that they won’ “ban first, negotiate later”. Where, exactly, was the victory? Let us see if good counsel prevails in the Halls of Linden, and they handle the situation with a degree of sanity. If they want to be like (most of) the rest of Corporate America - and God Knows, they seem desperate to be seen this way - then sanity will win out. To act otherwise is the path of madness. The ordure that will be heaped on the brand they naturally wish to protect would leave some very unhappy shareholders, some disillusioned potential investors and maybe a bunch of lawyers taking a long walk off a short plank.

The number they’re going to want to send you is going to be zero! I agree that it’s really dumb that many perfectly non-tortious uses of LL’s marks and related signs and symbols are now TOS violations, and I do wish they’d fix that, but they are NOT going to be sending you, or Rheta, C&D letters about your nominative use. I bet Rheta dollars to donuts on this on Twitter, and I’ll gladly do it with you here. Their lawyers are for some incomprehensible reason making them reserve the right to, but in practice they ain’t gonna. Not saying that that makes it all okay, just saying that they ain’t gonna do that particular thing…