Stephen S. Wu-- SL: Legal Writer,, (408) 573-5737, 50 W. San Fernando St., Ste. 750, San Jose, CA 95113

Defendants Respond in the Minsky SLART Trademark Infringement Case Concerning Second Life

This past week, the defendants in the Minsky trademark infringement case responded with a number of their own court filings. Richard Minsky had filed a trademark infringement lawsuit last summer against Linden Research, an avatar named Victor Vezina (named as a John Doe defendant), Linden Chairman Philip Rosedale, and former Chairman Mitchell Kapor in Albany’s federal court. Mr. Minsky is known as ArtWorld Market on Second Life and claims ownership in the mark SLART used with his art magazine. Richard Minsky’s recent letter brief claimed non-compliance with the temporary restraining order in place. Linden Research defended its conduct in its own letter brief. In addition, Kapor and Rosedale asked the Court to dismiss the claims against them. Finally, Linden Research filed an answer and counterclaims document denying Mr. Minsky’s allegations, asserting a number of defenses, and seeking its own relief in a counterclaim that includes infringement and cancellation claims. Linden Research contends that Mr. Minsky infringed upon its SECOND LIFE and SL marks.
In their letter brief, Linden Research claimed that it had no obligation to pass along the notice of infringement under the terms of the TRO. Moreover, it said that since the item in question was no longer present in Second Life, Mr. Minsky’s motion is moot.

Messrs. Kapor’s and Rosedale’s motion to dismiss contends that Mr. Minsky failed to plead his fraud claims against them with particularity. They also allege that Mr. Minsky failed to plead the essential elements of fraud. These kinds of arguments are standard fare for defendants seeking dismissal of fraud claims. Even if this motion is granted, courts frequently give the plaintiff another opportunity to try alleging fraud again. Given their somewhat tangential role in the day-to-day operations of Linden Research, however, it is not clear how the Court will view Mr. Minsky’s claims against them.

Finally, Linden Research filed an answer and counterclaim. The answer denies Mr. Minsky’s allegations in his amended complaint. It also lays out a number of affirmative defenses. The most interesting defense is Linden Research’s claim that Mr. Minsky has not used his SLART mark in commerce. Linden Research will need to explain why the use of SLART on the (interstate and international) Internet to advertise his magazine is not use of SLART in “commerce.”

Linden Research’s counterclaims largely seek relief for Mr. Minsky’s alleged infringement of the registered trademark SECOND LIFE and its unregistered mark SL. Linden Research also seeks cancellation of Mr. Minsky’s SLART mark.

Copies of the defendants’ recent filings appear on the Minsky v. Linden Research documents page.