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Second Life’s ‘Aimee Weber’ (Alyssa LaRoche) recently became the first avatar with a registered trademark. The application for the registered mark was filed February 18, 2007 approved for publication July 7, and published for opposition August 14. According to ‘Weber,’ no opposition was filed, and she plans to immediately begin using the mark. In a sea of often silly metaverse firsts, this one could well signal a trend. ‘Weber’ runs a respected design studio in-world, 'Aimee Weber' USPTO Logohas one of the most recognizable avatars in Second Life, and literally wrote the book on Second Life content creation. And now she gets to wear “TM” bling too.

A trademarked avatar, though novel, shouldn’t really be a surprise. McDonald’s trademarked Ronald, so there is no reason an avatar — for many users, a computer generated representation of their brand — could not also be trademarked. The rather distinct appearance of avatar ‘Aimee Weber’ is indisputably identified with the brand. And ‘Aimee Weber’ is as much a Second Life icon as she is a person you chat with at a virtual coffee shop or hire for design work; the little “TM” just makes that official.

One interesting legal angle here: the avatar, once trademarked, is basically locked into a persistent image, so VB hopes that ‘Weber’ is happy with her pigtails, butterfly wings, green tutu, zebra leggings, and stompy boots, because that’s what she’s stuck with as long as she wants to keep the mark.

'Aimee Weber' TrademarkedVB caught up with the ‘Weber’ today for a short interview.

Virtually Blind: First off, why trademark your avatar? Some specific problem, or is it more a general move to protect your brand?

Aimee Weber: It’s a general move to protect my brand. We haven’t seen any problems yet, but prior to the trademark, we wouldn’t have been as well protected if somebody wanted to plaster my image all over an unrelated product.

VB: Do you plan to pursue people who infringe? If someone creates a new avatar that looks just like ‘Aimee Weber,’ should that person expect to hear from your lawyers?

AW: Well I think there are two levels to that question, one is my own personal concerns, which are pretty laid back. I don’t want to see my hard work co-opted by another company, but as far as I’m concerned any non-commercial reproduction of my avatar doesn’t bother me. I’m more flattered than anything. The other side of the coin is the general protection of the trademark. That may compel me to ask for the removal of stuff that doesn’t bother me so much. I’m not sure where that line is yet, but if there is one thing I learned from Anshe Chung’s DMCA spree is that I don’t want to piss off the community by being overly territorial.

VB: How closely do you identify with ‘Aimee Weber?’ Is it at all odd, knowing you can’t really alter your avatar’s appearance much now?

AW: Well I see Aimee Weber as a “character” and myself the creator of that character. Not that there is much difference between Aimee and myself! A whole lot of who I am gets channeled into this avatar. But I do see them as distinct. Aimee is the Dilbert to my Scott Adams.

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21 Responses to “‘Aimee Weber’ (TM) Gets USPTO Stamp of Approval for Pigtails, Tutu, Wings, Tights, and Stompy Boots”

  1. on 21 Sep 2007 at 8:25 pmTaran Rampersad

    Honestly, I see it as a status mark more than anything else. That’s fine. I suppose she can afford it, so why not? I have common law trademarks, as do many other people, but… that doesn’t get people talking about us. :-)

    But on another level, I am disturbed.

    I’ve seen many avatars that look very similar to Aimee’s, so in a way I am very surprised that she was able to establish a trademark. For instance, the headshot used reminds me of Tateru Nino’s headshot. http://www.flickr.com/photos/7454602@N03/446245529/

    it isn’t 100%, but it is close enough for me to wonder – I have seen avatars much closer to Aimee’s look. How the trademark office researched this leads me to wonder whether this is going to hatch more Enola Bean-like shenanigans.

    In essence, no problem about the person with the trademark – but strong questions as to how the USPTO could say that her avatar is distinctive.

  2. on 22 Sep 2007 at 10:29 amKyzaadrao Skall

    Well, now we just wait for Amy Brown to sue her for looking like one of her fairies? Great tactic, everyone trademark their avatars so you can’t sell virtual goods looking like “any” avatar.

    The future is going to be filled with some pretty funny legal cases I think.

  3. on 22 Sep 2007 at 10:33 amKyzaadrao Skall

    Actually I have a bigger question. If she made her character using publically available clothing products, “can” she stand a chance of winning? If I can go buy all of those pieces…the hair, the skin, the clothes… you see what I mean.

  4. on 22 Sep 2007 at 1:36 pmTaran Rampersad

    I’m actually surprised that there is so little response related to how easy it was for the USPTO to toss out a trademark on this.

    Mike Roh Soft.

  5. on 22 Sep 2007 at 4:46 pmJessica Holyoke

    Its not a copyright. You can still make an avatar that looks like Aimee Weber. I think its similar to dressing up as the Kool aid man. But I can’t use my dressing up as the Kool Aid Man to sell anything and I wouldn’t hang around the free sex areas dressed as the Kool Aid Man. (Oh, yeah).

    But seriously, other people dressing up as Aimee Weber in general would not affect her trademark. Other people are infringing on Aimee Weber’s copyright if they dress up as her.

    And I think there’s a distinctive secondary meaning that’s attached to Aimee Weber. Seeing the picture above you know that the avatar represents Aimee Weber, which falls under the trademark domain. Its like how you see a flat picture of an apple with a bite taken out of the upper right side and you think Apple or iTunes.

  6. on 22 Sep 2007 at 7:44 pmBenjamin Duranske

    @5 Sometimes, comments here actually crack me up (“Oh, yeah.”) Well done.

    @4 & @1, you can trademark just about anything that’s sufficiently tied to your brand, and it is 100% okay with the trademark office that other things look like what you’ve trademarked (consider Nabisco – it’s just an equilateral red triangle pointing northwest, with diagonal writing — they exist all over the place and you can use one however you like, except to sell crackers.) The key is Weber’s overall look — it’s not just the hairstyle but the whole thing. Green tutu, zebra socks, dark hair, pigtails, glasses, purple butterfly wings. If the character was hawking hamburgers at “Aimee’s Drive-Thru” instead of representing a Second Life design service, it’d seem completely reasonable.

    @3 – She can, the question would be whether she licensed or bought the parts of the look with rights to do what she’s doing with them. If she didn’t, somebody could, theoretically, come after her. It’d be an uphill battle, but given the success the brand has had (book cover, logo, trademark) if they weren’t licensed appropriately, I could see somebody trying.

  7. on 23 Sep 2007 at 1:19 amAimee Weber

    Great discussion.

    @3 might be an issue if the details of third party products (I didn’t use many) were critical to the definition of the trademark, but this isn’t the case. I actually submitted multiple images of Aimee to the USPTO including screen shots and hand-drawn sketches. In fact the first image you see in this blog entry is a hand-drawn sketch from the USPTO database. Details such as Aimee’s piggytails are symbolically represented in the sketch but not associated with any third party content creator.

    In-world I will sometimes use Six Kennedy’s piggytails, Washu’s piggytails, and piggytails of my own creation to render the trademarked Aimee Weber appearance, but the precise implementation of the piggytails in 3D modeling is not what is trademarked. It’s the whole look.

    Hope this helps!

  8. on 23 Sep 2007 at 3:46 amRichard Bartle

    Amusingly, all it would take would be an unfortunate upgrade to Second Life’s graphics engine and even Aimee might not get to look like her trademark.

    Richard

  9. on 24 Sep 2007 at 10:23 amBob Cumbow

    Actually, she doesn’t have a registered trademark–at least not yet. According to the record you linked to, her application was filed on an “intent to use” basis, and no use has yet been made of record. Moreover, the mark has only recently completed the publication period. It’s likely to be a few months before this becomes a registration, assuming that no third party has objected during the publication period, and assuming that the trademark’s owner files a Statement of Use. Also, the term “TM” only denotes a claim of trademark rights, not a registration. Anyone can use it. It is the “®” for which registration is required. This information is tendered respectfully in the hope that it will be useful to you and your readers.

  10. on 24 Sep 2007 at 10:37 amBenjamin Duranske

    @9 Excellent point, Bob. Thanks for the clarification.  So to be totally accurate, she’s cleared all of the major hurdles for a registered mark, but it isn’t officially “registered” yet. She says there were no challenges during the publication period, so she’ll get the “®” bling later, as long as she files a Statement of Use.

  11. [...] Aimee Weber™ [Virtually Blind article] [...]

  12. on 25 Sep 2007 at 6:29 pmTaran Rampersad

    @6: How can the trademark be established as distinctive without a comparison with other avatars? While the established Laws apply to logos and other things – such as the Nabisco triangle you offered as an example – if every person has a common law trademark on their own avatar, then it does seem like a very slippery slope for the USPTO.

    I could understand a logo which incorporates the avatar – thus distinguishing it from simply being an avatar which could quite possibly look like anyone else, thus opening up all sorts of trademark issues for the USPTO in the future. Toss a frame around it, and I would see no problem.

    This is not just about established trademark law in my eyes – it is about problems with trademarking something which could accidentally be created and used in good faith… and which can be associated with someone’s identity in a virtual world. People don’t wander around virtual worlds as red triangles, if you see my point.

  13. on 25 Sep 2007 at 7:28 pmBenjamin Duranske

    @12 – For the purpose of evaluating the application, the comparison the examiner did would just be with other trademarks, not with everything in the (real or virtual) world. If there had been a real company selling clothes that used a similar character to sell their stuff, Aimee’s application theoretically wouldn’t have made it through.

    Your last point raises an interesting argument (maybe against TM law generally) though I think that in this case, it all comes back to the purpose of trademark law — which is spelled out explicitly as avoiding consumer confusion (this is Jessica’s point above, I think). If somebody creates a similar look for their avatar, but is not using that to sell clothing or run a design studio, they’ll be fine. It’s only where the use becomes a commercial use that trademark law would even apply.

  14. [...] ‘Aimee Weber’ ™ Gets USPTO Stamp of Approval for Pigtails, Tutu, Wings, Tights, and Stompy Boots Second Life’s ‘Aimee Weber’ (Alyssa LaRoche) recently became the first avatar with a registered trademark. The application for the registered mark was filed February 18, 2007 approved for publication July 7, and published for opposition August 14. According to ‘Weber,’ no opposition was filed, and she plans to immediately begin using the mark. In a sea of often silly metaverse firsts, this one could well signal a trend. ‘Weber’ runs a respected design studio in-world, has one of the most recognizable avatars in Second Life, and literally wrote the book on Second Life content creation. And now she gets to wear “TM” bling too. [...]

  15. on 26 Sep 2007 at 4:10 pmTaran Rampersad

    @13: In Second Life, defining what a commercial use is would be really quite odd because that would require evidence that the Linden dollar is real.

    This is not too dissimilar than Eros LLC’s claim, actually. Lest we forget, that was the first recorded trademark in process, not this one. What makes this different?

    Combining the two paragraphs: If Eros LLC can collect damages because of commercial interests within Second Life, then it stands to reason that commerce within Second Life is seen as *real*, which then would mean that anyone trading with a similar looking avatar to one trademarked (as in Aimee’s application in process) and can produce evidence to support their claim…

    Just another headache, isn’t it? Over what? Something that could have been made into a logo to differentiate it from a virtual world avatar.

    So here’s another question: Will Aimee be required by law to have a little ‘TM’ following her avatar around? ;-)

  16. [...] [Virtually Blind article] [...]

  17. on 12 Dec 2007 at 4:27 pmBrigid Yoshikawa

    Actually I find this a bit disturbing. As the owner, creator, and operator of Brythony an isle for the mythic arts in SL – I can’t help but notice that Aimee’s avatar’s look is heavily influenced by the artwork of internationally renown fantasy artist Amy Brown. Amy Brown has an SL presence on our isle – along with many other world famous and up and coming artists. That whole striped stocking big boot wearing fairy thing is a trademark of Amy Brown’s work. Sooooo if Amy decides to make her avatar look much more like one of her paintings – and uses her avatar to promote her work in SL – will she be infringing? Her rights to that “look” certainly predate Aimee Webers. Although I dare say all of those in high school in the 80′s-90′s that listened to Siouxsie are prone to have a fondness for striped stockings.

    Just for clarity’s sake I don’t think Aimee would have a problem with Amy – as the former seems a reasoned and tolerant person trying to protect specific assets – but the whole situation here is interesting. It would be astonishing indeed to have an established brand in the real world – and to enter the virtual one only to find that that brand is not only associated with something else but that your RL rights don’t transfer.

    Weirdness.

  18. on 14 Apr 2008 at 5:45 pmVirtual Worlds 2008 « technola

    [...] different sessions, ranging from an interesting discussion on intellectual property issues (yes, you can trademark your avatar, complete with “TM” bling) to a panel on bringing your organization into virtual [...]

  19. [...] Benjamin Duranske, a respected commentator on law as it applies to virtual environments, said of the filing that, “McDonald’s trademarked Ronald, so there is no reason an avatar — for many users, a computer generated representation of their brand — could not also be trademarked. The rather distinct appearance of avatar ‘Aimee Weber’ is indisputably identified with the brand. And ‘Aimee Weber’ is as much a Second Life icon as she is a person you chat with at a virtual coffee shop or hire for design work; the little “TM” just makes that official.” [...]

  20. [...] ‘Aimee Weber’ (TM) Gets USPTO Stamp of Approval for Pigtails, Tutu, Wings, Tights, and Stompy Bo… [...]

  21. on 27 May 2010 at 1:37 amair

    ckquote> etc.) but know that VB’s spam blocker holds posts with five or more links. VB supports gravatar

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