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

Defendants Seek to Dissolve Minsky Restraining Order

The defendants in the Minsky v. Linden Research case entered their appearance in Court this week and sought to dissolve the temporary restraining order entered against them on September 4, 2008. The Court will create a schedule for briefing and a hearing on whether the Court should issue a preliminary injunction against the defendants during the case. Mr. Minsky filed a reply in support of his motion for temporary restraining order and preliminary injunction. In the end, the Court entered a modified temporary restraining order pending the preliminary injunction hearing. The TRO implements a trademark take down procedure by which Mr. Minsky can continue to bring infringements to the attention of the Lindens for action.
I wrote last week that artist and art critic Richard Minsky filed suit during the summer in Albany against Linden Research, an avatar named Victor Vezina (named as a John Doe defendant), Linden Chairman Philip Rosedale, and former Chairman Mitch Kapor, claiming that they infringed upon his federal trademark SLART. Mr. Minsky’s avatar in SL is ArtWord Market.

The papers filed last week present a myriad of newsworthy issue, which are too numerous to cover in depth today. For instance, the papers raise interesting questions of digital evidence and the duty to preserve it during litigation. These issues will need to wait for another day and another post.

Nonetheless, it is worth noting a few things. First, Linden Research Senior Counsel Laura Pirri wrote in a declaration that the Lindens tried to mediate their dispute with Mr. Minsky online using a mediator from the American Arbitration Association. Court papers do not always reveal the fact that the parties attempted alternative dispute resolution. In any case, this kind of mediation may be a future model for online alternative dispute resolution in virtual worlds, but as is apparent, the mediation did not settle the dispute here.

Second, it is interesting that the Lindens took the side of members of the art community stating that Mr. Minsky should not have exclusive use of the combination of SL and ART, and should not assert his mark against other avatars. They, of course, want to assert protection of the SL mark, and Mr. Minsky’s mark makes use of it. They therefore have an incentive to dispute Mr. Minsky’s rights in the SLART mark. Nonetheless, the Lindens came down squarely on the side of the art community and its opposition to Mr. Minsky’s mark.

Third, the “consent” temporary restraining order is also interesting because it may serve as the template for avoiding, or at least settling, trademark disputes in the future. If virtual worlds providers use this procedure as a matter of routine policy, it may help them avoid involvement in trademark cases against their users. Also, although the Court says the TRO rests on the parties’ consent, neither the parties nor their counsel signed a consent on the order. Accordingly, it is not clear how the parties consented to the TRO. Nonetheless, the Court refers to Wednesday’s hearing in the order, and perhaps some kind of agreement was hammered out in connection with the hearing.

Copies of selected documents, including a court declaration, memorandum seeking to dissolve the temporary restraining order and oppose a preliminary injunction, the plaintiff’s reply memorandum, the court’s minute order from Wednesday’s hearing, and the Court’s consent temporary restraining order, appear on the Minsky v. Linden Research documents page.