Stolen business name?

No, that is not true. By the website name under your forum user name here - you obviously are using Phil's SL business name in SL way after he has established this business.

You are shameless and immoral. Virtual worlds do not need to be over run with people with your bottom-feeding attitude. We need to act as a community and help each other establuish business. You are doing the opposite. And you do not care.

What a horrible way to establish yourself in Second Life.

The correct legal phraseology is "I respectfully draw your attention to the reply given in the matter of Arkell v. Pressdram" http://www.nasw.org/users/nbauman/arkell.htm

bloody brilliant =)

Something can be a common term and yet still be a trademark within the context of a very limited scope of use - such as the name of a particular business using a particular model within a particular market and having a particular reputation built up around that name.

I would have a hard time not seeing Phil's name as a valid trademark.

You've have to do some pretty fancy footwork to show to me that he has -NOT- built a reputation within the Second Life community and economy based upon the use of that name as the identity for an established brand of products in the furniture market of Second Life.

I don't think I've ever shopped at the store, not sure if I've ever even been there, but the name is recognizable to me outside of the context of Phil and his forum posts.

If you were to use the name to market an escort service... you might be able to argue that Phil's trademark does not extend to that part of the SL community... but even then, he could probably manage to counter that it still creates brand identity confusion due to the small and highly interwoven nature of Second Life.

It might also be noted that just about every post in this thread is evidence in any potential litigation. Especially the posts by the potential defendant that seem to clearly show he is aware of a prior existing use of the brand name by another party...

Which could turn the issue into one also about some form of intentional misappropriation.

I've seen some pretty ridiculous things in SL down the years but this one is approaching classic status.

/me sits down with the popcorn and pulls out the diary and waits to pencil in the court date.

Right. That's for the people who run the virtual world.

I think I still have a bottle or two left over from the Zindra threads. Hold out your glass.

When you are given a federal trademark registration you receive a trademark certificate that you can present to Linden Lab. In addition trademark registrations can be found and are accessible by the general public at the USPTO website so one could provide Linden Lab with the url address showing the trademark registration. If it were an infringement claim on a similar name instead of an identical name (mere spaces between words are not considered a difference for trade names) then Linden Lab still might not act as whether a derivative name is an infringement is a legal argument for the courts. But if Phil had a federal trademark registration for "Prim Savers" for use in commerce of virtual furniture in Second Life (which he does not) then it is highly probably that Linden Lab would remove the objects.
No. If a trademark is unregistered, the only way the USPTO can know this and deny a registration to another applicant is if the owner of the unregistered trademark files an opposition during the open publication period. If a person is generally ignorant about protecting themselves by filing for a trademark registration or lacks the resources to do so, then they are probably not going to be saavy enough or have the resources to monitor publications for opposition. Therefore it is probable that in such a situation, the registration would go unopposed during the publication period.
Actually it is not the law. For a defamation case to prevail in most jurisdictions in the United States one must establish not only that what the defendant said was factually untrue, but also that the defendant knew it was false or should have known it was false. This is how the tabloids get away with printing the ludicrous horses**t that they publish about people. There is more than enough gray area here for a defendant to claim a good faith belief that what he said was true. On top of that the plaintiff has to prove damages, which are generally difficult if not impossible to prove in cases like this, and are almost always nominal. This is why lawyers will not take these cases on contingency. In the end it usually costs the plaintiff so much in time and money that you usually only see very rich people doing this on principle without regard to the actual compensation (and usually against the advice of counsel). At the end of the day if the plaintiff wins they are often awarded something in the realm of one dollar in damages by the jury which is why this statement is also not correct:

I think you know after today that I have no animosity towards you but this is just not going to happen. I'd advise to let it go.

/sigh

/cries pixel tears.

True...

you know Floyd, you remind me very much of a run in I had a few years back with a well known (and not just for their items but their *ahem* interesting business generating practices) "creator" here. They too had appropriated a name (although they also took the design of the item as well) and when challenged they quoted me chapter/verse all the reasons why they were operating inside copyright law and since I hadn't trademarked the item name it was ok for them to do what they did. Obviously they'd had the allegations of copyright violation made against them previously to be so well versed.

Interestingly, they too threatened me with legal action if I continued to make an issue of their sharp dealings.

If you're as underhand and ethically bankrupt as that other person appears to be then I'm sure you'll be successful in your endeavour to obtain what looks to me as advertising/brand leverage from another company operating in SL. Whether you'll ever make enough to cover the supposed real world costs of your adventure into one upmanship and bullying is another matter.

I thought you'd never offer

Are you for real? Gotta say.....you just put the icing on the cake. Go ahead and add me to your libel suit.....I busted your ass out big time, without offering up any "in my humble opinions"....and my attorney loves this SL Sh#!....he'll get a kick out of this one.

I agree with Lias, word for word. In spite of any arguments or debates that we all have in forum, about how we go about our businesses....I don't ever recall someone going to this extreme, and exhibiting such an ugly display. And after they took someone's name!

Karma, baby.

No, that's for the people who run the real world.

Then change the name and sell the furniture genius.

Sheeeeeeeesh!

I though that this thread was going to self-terminate with a prime example of Phil's contrived semantic dancing left hanging there.
He sees me say "rules" - and though it is obvious from the entire thread that I use it to cover TOS and Law, he avoids the main issue and raises a fog about changing tack.


Anyhoo, since we have gone back into wannabe undying mode for the moment.....


The fascination of this thread is that it has Phil asking someone to "do the right thing" after years of him pounding the "If it's not against the TOS, it's OK" drum during many threads on gaming Search.
He asks this in advance of getting professional legal advice.







Has the Law been broken?
If some law has been broken ……What law? In what jurisdiction?
There may be a case to be argued – which is not the same thing as breaking the law - , but *if* the Law has been broken – and “clearly” at that - then get a court order and slap it on LL.


Without actual proof that the law has been broken, then we have Phil’s own standard that we should expect him to apply to others as well as to himself.

… and just to be clear, Phil is referring to explicit written rules, and not some woolly idealistic ‘rules’ or ‘ehtics’.




To my mind, Search gaming is as outrageous as would be setting out to piggyback on another name.
Some people might have less difficulty making up their minds about the name thing. Understanding the name thing does not involve an understanding of how search engines work and the exploits to which LL leaves Search open to gaming by unscrupulous people. The name thing also stands out because it’s not routine – unlike the blatant cheating that many have simply accepted as part of the environment.
In some ways, Search gaming is more outrageous as it affects the bottom line of more people and puts pressure on people to lower their standards and join in the cheating.




On another point..
I have a theory that the more that people spout about legal action in public, the less likely that they will take legal action. Good professional advice would berate them for opening their mouths in the first place, and would tell them for heaven’s sake to shut up.


As for asking Phil to apologise, even where he has made a complete prat of himself v. his declared standards.
LOL!
I was not seriously suggesting that Phil would do this. I was simply listing some options in the full knowledge that Phil would hate them all.





All the cartoony lawyer posturing by both sides in no way leads us to the central question as far as Phil’s position about the situation should be concerned. Has some written rule or applicable law *actually* been broken.? Informal conventions on good behaviour are not applicable for Phil = “comply with the rules. Nobody can ask any more from anyone. ... .”

Hey! So much posting.

I noticed some being quoted as saying:


I presume that they were referring to Search gamers. This certainly would be my opinion of them.
I posted as much on the Forums about two years ago, and was met then and since with howls of outage that I would insult people who were running businesses and were not breaking the TOS.

Phil's earlier reference to "piss off" is almost in point.

I'm pretty sure that in England the rights and wrongs of this civil matter would fall to be determined having regard to the principles applicable in relation to the tort of "passing off".

http://en.wikipedia.org/wiki/Passing_off

Followed by alot of BS from the guy who stole the name and you kind of enjoying Phil getting beat up over his store name because of some crime in his past.


DO THE RIGHT THING seems to be the only reasonable outcome of this thread.

I would have liked to have used that but I didn't know where to find it. It's bloody brilliant though

You wish There can't be many people dumb enough to not know that the "law" and the ToS "rules" are completely different things and the difference between them is nothing to do with semantics, but your posts show you as being one of them. Of course you wanted the thread to sink - who wouldn't after that.

Maybe you could get together with Floyd and formulate a plan of action. You'd fit right in with his way of thinking, and his lawyer's, although I imagine that his lawyer merely suggested giving the 'legal' angle a try woth a post, knowing that, if it didn't work, there's nothing to follow. I wonder how much the legal advice is costing Floyd

I think that I have been at pains to make it clear that my amusement has nothing to to with the particulars of the case.

For me, this thread is about blatant double standards.

For most people, the particulars of this case might lead them to believe that Floyd was trying to pull a fast one. This belief might not be based on TOS or Law. It might be based on a sense of right and wrong.

For Phil, it has to be different. He has clearly stated that that something is only wrong if it is against explicitly written rules. There is no "spirit" to be considered. It is by no means clear that the use of the similar name is illegal.


If what you mean by "DO THE RIGHT THING" is "Do the decent thing" rather than "Obey the law" then you have a point.

However, if Phil says "DO THE RIGHT THING" then according to his previous statements in the Forums it can only refer to an *actual* breach of a law that is applicable to the particular one case.

I think everyone has gathered that you're just being a dickhead in this thread, Sling, but it's good that you admit it.

Can't you read? You were already informed that there are no double standards, regardless of how much you would like there to be. A person fully complying with the ToS and the law, is in breach of nothing. A person breaking the law is in breach of the law. Which part is beyond your capability to grasp, Sling?

Are you trying to make a point or something? If something is against either the ToS or the law, it's wrong. Has anyone ever said differently?

And there you have it. An *actual* breach of the law has occured - Floyd broke, and continues to break, the law. The simplest solution would be for him to "do the right thing".

There can't be that many people dumb enough not to see right through you standard MO = pick on some words, put them in a vucuum and do a semantic dance on them, avoiding the meaning of what was said in the context.




I have no interest in being of assistance to Floyd. He is simply the occasion of showing up your double standards.
Although he was the trigger, you were the main mover as you chose to bring this matter to the Forums instead of doing the sensible thing and quietly get on with protecting what you say is a RL income. A real RL business would obtain professional advice and act on it. It would not engage in Forum drama.

In originating this thread and further postings in it
- you have exhibited double standards
- you have prejudiced the strength of you case by saying that you accepted that Floyd was not acting in bad faith when he began to use Primsavers as a name - that he only became aware of you at a later date.
- you also clearly expressed doubt - giving weight to a counter argument that this was by no means a clear case



Probably the same level as yourself judging by the postings of the pair of you here

He doesn't seem disposed to do what you have asked him to do.

If an *actual* breach of the law has occurred, then have you lawyers communicate that to LL.

They pretty much are becoming one in the same.