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

Richard Minsky Appeals Order Denying Relief

On December 18, 2008, Richard Minsky appealed the December 8 order in his Second Life trademark infringement case denying Mr. Minsky’s motion regarding Linden Research’s compliance with the temporary restraining order (TRO) in the case. Mr. Minsky contended that Linden Research failed to comply with the TRO, but the magistrate judge disagreed. Mr. Minsky now seeks to have the district judge on the case overturn the magistrate judge’s order.
Among other things, Mr. Minsky states that the magistrate judge misinterpreted the TRO by reading into it additional conditions to the requirement that the Lindens pass along Mr. Minsky’s cease and desist notices. In specific, Mr. Minsky stated that the Court mistakenly found that the disappearance of the allegedly infringing use of his SLART trademark meant that there was no duty to pass along his notice to the alleged infringer. He contends that there no requirement in the TRO that the Lindens find the alleged infringing use still present as a condition to forwarding his notices.

He also contends that the Lindens’ duty to pass along his notices is triggered by a use of SLART with letters of uniform “font, size and color” regardless of “style, case, or any other elements of font or style.” The Court had found no violation by the Lindens where they did not pass along a notice directed to an avatar that displayed “SLart Show Viewer.” Minsky contends that the lower case “art” in “SLart” did not take the use outside the TRO’s requirement to pass along cease and desist notices to those using the SLART mark on Second Life, where the word SLART is depicted with uniform “font, size and color.” The issue is whether lower case letters are per se of different “size” than upper case letters. According to Mr. Minsky, the “Court issued the original TRO on the basis that ‘SLart’ was infringing on ‘SLART.’” Consequently, according to Mr. Minsky, the Court should not read into the TRO a requirement of uniform case where no such requirement now appears in the TRO.

Linden Research will have an opportunity to oppose the appeal. U.S. District Judge Lawrence E. Kahn will ultimately decide whether or not to overturn the magistrate judge’s order.