AFFORDABLE ONLINE MASTERS DEGREE

Hello everyone. Thanks for logging in and thanks to the SL Bar Association as well as Kate Fitz for providing respectively the space and CLE accreditation that brings us all here today. We have lots of ground to cover so I think its best that we begin…

Avatars are used in a number of ways, but more and more often avatar names are being used as designations of goods and services in virtual environments so it becomes important for us to analyze the existing structures that support their protection, namely as trademarks under both in common law and federal regimes as well as internationally under publicity and privacy statutes. As the Internet has become a common tool of trade and commerce, the use of avatar names as designations of the source of goods and services has become more commonplace. Today we’ll discuss some issues surrounding the use of avatars as graphic characters, as well as existing protection and enforcement mechanisms.

Diving right in we’ll begin with AVATAR NAMES AS DOMAINS AND THEN COMMON LAW MARKS

Lets consider SEVEN IMPORTANT ISSUES CONCERNING USE OF AVATAR NAMES AND GAINING COMMON LAW TRADEMARK STATUS

I relevant terms of service provisions

II the theory of territorial protection for common law trademarks, the traditional way of using a mark, and how marks are now being used on the Internet.

III how common law mark owners traditionally prove use, and how they would go about proving such use on the Internet.

IV the Natural Expansion Doctrine, how it is applied to common law marks, and what impact the Internet might have upon this doctrine.

V the Lanham Act, the problems that emerge when a common law mark owner can prove continuous prior use, and how the Internet might affect this issue

VI how and why common law trademark territorial rights are likely to be affected as more and more trademark owners place their marks on the Internet and finally

VII use in commerce

Lets talk about that last issue for a second. Proving a mark’s use requires showing that it has a “Zone of Actual Goodwill”—namely an area in which the mark has come to be identified with its user’s goods or services. Within this zone, courts will afford redress or relief on the grounds that a party has a valuable interest in the goodwill of their trade or business and to the extent that the trademark is adopted to maintain and extend that trade or business. When infringement occurs within that zone, it normally consists of the sale of the goods of one manufacturer or vendor for those of another.

The first subpart is the “Zone of Actual Market Penetration.” Here courts have determined that a party should be awarded ownership of a mark in a specific geographic area only when the party’s mark achieves market penetration that is significant enough to pose a real likelihood of confusion among the consumers in that area. To determine market penetration, courts will most often examine a party’s sales, advertising, and reputation in that area.

In Natural Footwear, for example, the Third Circuit considered four distinct factors to determine whether a trademark had successfully penetrated an area’s market: 1) the volume of sales of the trademarked product, 2) the growth trends (both positive and negative) in the area, 3) the number of persons actually purchasing the product in relation to the potential number of customers, and 4) the amount of product advertising in the area.

The second subpart is the “Zone of Reputation”—that is an area in which a mark’s reputation has been carried by word of mouth and/or by advertisements. This zone can also represent a protectable area for the trademark user.

In one case, for example, the Ninth Circuit suggested that it was willing to enjoin an infringing user where the legitimate user’s reputation extended into the infringer’s area at the time the infringer adopted its mark. In most instances, however, the “Zone of Reputation” will not be the sole determinative factor. Theoretically, trademark protection should not extend beyond the area of market penetration.

In contrast as a point of comparison, the amount of contact needed within a particular state to prove personal jurisdiction does not really differ from the amount of contact needed to prove market penetration. Assuming that relative quantity is not an issue, the two tests ask many of the same objective questions. In the first instance, the inquiries are made concerning the defendant party. In the other, they are made concerning the mark itself.

Since there are no cases on point regarding the market penetration of Internet marks, courts will have the opportunity to make this analogy. Chances are, they will find it quite useful. Thus, a common law trademark owner, after placing his mark on the Internet, could successfully argue that the Internet has facilitated the penetration of his mark into a particular market area. This, accordingly, helps to define his
“Zone of Market Penetration,” and in conjunction, his “Zone of Actual Go

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