Thursday, March 27, 2008

More on What Virtual Property Can Do For Property: The Problem of Analogy

In my string of posts, I'm trying to explain how the study of virtual property can clarify our thinking about property generally and intangible rights in particular. In my last post, I explained some of the analytical problems in designating "intangible" as a property category. Here, I'll explain some problems with another analytical path that some courts follow in trying to fashion rules for intangible rights.

If you look at the bottom of that last post, you'll see that it's in the "Intellectual Property" category. Ben and I put the first post there because there wasn't a "Virtual Property" category two weeks ago, so we agreed that "Intellectual Property" was good enough. Why was it good enough? For one thing, I am discussing some IP. Eros v. Simon, the sex bed case, IS an intellectual property case.

But we also decided it was good enough because we analogized virtual property to intangible rights that we know already, and when many lawyers think of intangible rights, they think of intellectual property. Courts, of course, do the same, and sometimes reach results that are not very helpful, or worse, do not make much sense.

Another domain name case, Dorer v. Arel, 60 F. Supp. 2d 558 (E.D. Va. 1999) illustrates the problem of characterizing all intangible rights as intellectual property. Dorer was a creditors' rights case in which a judgment creditor wanted reach the domain name by garnishment. Under the applicable statute, only a property right could be garnished. So the court looked to one body of intellectual property law, trademark law, and concluded that a domain name that was eligible for trademark protection was property and thus garnishable, while a domain name not eligible for trademark protection was not property and therefore not garnishable.

Here's the problem. A domain name that is eligible for trademark protection can't be transferred without the goodwill of the business to which it is attached, and as a result, is not of much value to creditors. A generic domain name, on the other hand, is not eligible for trademark protection, but can be VERY valuable to a creditor because it can be transferred for lots of money.

So again, here's where the virtual world cases can help out. Virtual world disputes mirror disputes in the tangible world. People complain when they're denied use of their assets (Bragg v. Linden Research) and they complain when someone steals their designs (Eros v. Simon). The disputes are different from tangible world disputes in a way that should not be important -- they ALL involve intangible assets. Virtual world disputes can teach us to put tangibility aside and concentrate on other aspects of property rights.

Juliet Moringiello

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I just noticed that the January 2008 Journal of the Patent and Trademark Office Society (JPTOS Vol. 90, Number 1, p.51) features an essay entitled "Second Life--A New Dimension for Trademark Infringement". The author admonishes parties and businesses to enforce their trademarks in SL. In addition, he urges businesses to utilize "virtual trademarks" as a means of advancing their business and marketing concerns. He further states that there already exists a virtual Patent and Trademark Office within SL.

Posted by: Sam Gompers | Apr 1, 2008 1:20:31 PM

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