October 23rd, 2008 by Benjamin Duranske
As Second Life’s ‘Juris Amat,’ attorney Tamiko Franklin founded the non-profit Virtual Intellectual Property Organization, ran for and won a seat on the SL Bar Association’s 2008-2009 Executive Board, and regularly gives presentations in-world on legal issues, but at the moment, she is best known as the lawyer helping Richard Minsky navigate the nuances of trademark law as Minsky’s suit over use of his registered trademark “SLART” in Second Life works its way through the courts.
Ms. Franklin represents Minsky in the now-suspended action Linden Lab brought at the USPTO to try to cancel the registration for SLART and she also informally advises Minsky in his federal lawsuit against Linden Lab, avatar ‘Victor Vezina,’ and current and former Second Life board chairs Philip Rosedale and Mitch Kapor.
VB caught up with Ms. Franklin for an interview last week. We talked about her ongoing projects, her involvement in Minsky’s lawsuit, and more.
Virtually Blind: Before we get to the SLART matter, would you briefly remind Virtually Blind’s readers what you’re doing with the Virtual Intellectual Property Organization?
Tamiko Franklin: VIPO is a not for profit with the purpose of providing access to information, representation, as well as advisory and legal services support relating to intellectual property registration, enforcement and dispute resolution for virtual world residents and digital entrepreneurs.
VB: Is VIPO just you, or do you have a staff now?
TF: I have one legal beagle intern and she is absolutely fabulous. Her name is Shiva Fatoorechi and she’s a law student at Loyola Law School in Los Angeles. VIPO is now ready to grow and evolve to include additional volunteer attorneys and law students.
VB: I understand that you, via VIPO, represent Richard Minsky in the proceeding before the USPTO’s Trademark Trial and Appeal Board where Linden Lab has moved to cancel the registration of “SLART.” Is that right, and can you tell me a little bit about the relationship?
TF: That’s right. When I took Richard as a client, VIPO was only a group in the Second Life virtual world, but now it’s an incorporated entity in Massachusetts and can provide the service of handling trademark and copyright matters, including applications before the appropriate Offices, and the [Trademark Trial and Appeal Board].
VB: When did you get involved in the SLART matter?
TF: Shortly after our first interview Ben, Richard read the VB article, contacted me and asked for my assistance in trademark enforcement matters. [Editor's note: VB interviewed Ms. Franklin about the formation of VIPO in January, 2008.]
VB: Why did you get involved?
TF: I agreed to take Richard as my client because I was impressed by what he was able to accomplish on his own and I saw that I was in a unique position to assist him. The only reason why I joined the Second Life virtual world was to provide access to intellectual property related legal assistance to residents. I welcomed the opportunity.
VB: You do not formally represent Mr. Minsky in the separate proceeding in federal court in New York where he is suing Linden Lab, an avatar known as ‘Victor Vezina,’ Philip Rosedale, and Mitch Kapor, right?
TF: I have an attorney-client relationship with Richard that was established when I began acting on his behalf regarding trademark matters in the Second Life virtual world, and a Power of Attorney that covers enforcement matters for the SLART trademark. As you know, the attorney client relationship is riddled with duties and obligations.
It is my opinion that duty included, when the time came, informing him of the importance of his trademark’s presumption of validity in related civil matters, what that meant in terms of Lindens refusal to acknowledge his federally registered trademark, and the actionable nature of that refusal, especially considering their threats to initiate the cancellation of his mark.
At that time, I informed him of the various causes of action that I believed were met by the facts of his case. He chose from that list and drafted a complaint that was amended later to include causes of action he independently researched but were ok’d by me.
VB: Are you advising Mr. Minsky in the New York proceeding, and if so, what, exactly, is your role?
TF: Yes, as his attorney in trademark and copyright enforcement matters I do provide Richard with legal advice and support, including research, in order to assist him in meeting his legal burden as the Plaintiff in a civil action based on trademark infringement.
Based on my ongoing obligation, I review all his filings prior to their submission and inform him regarding the organization of his arguments and the elements of legal claims he presents therein. I also conduct regular interviews with him regarding the ongoing matters before the court and advise him on how best to proceed to defend his interest and achieve his goals.
VB: Does that kind of assistance pose any ethical or professional responsibility issues?
There are ethical issues involved. Generally a lawyer may provide legal assistance to litigants appearing before tribunals pro se. It is important to note that many courts regulate a more formal version of this type of relationship called “limited representation”. This refers to the practice of attorneys drafting the pleadings in a case without actually appearing, while the pro se litigant appears instead.
The rules of professional conduct concerning the provision of legal assistance to pro se litigants tend to become more prohibitive and require more disclosure when an attorney is writing their pleadings.
To date, our process is that Richard generates his filings and forwards them for my review whereupon related research is performed and I conduct an interview with him to clarify his points of law and fact, and offer advice concerning how the filing should be organized to achieve his end. We go through this process until he creates a document that we both believe is ready for filing. Richard is an independent thinker and has his own ideas about how he wants to proceed.
VB: Do you plan to remain in the wings on that lawsuit, or might we start seeing your name on pleadings if this gets closer to trial?
TF: We haven’t ruled anything out; but if I do go to New York it will be as an individual attorney to represent Richard and not in my capacity as an officer of VIPO.
VB: Some of Mr. Minsky’s filings are somewhat more colorful than traditional legal briefs. Do you assist with style questions as well as substance, and if so, do you discourage more flamboyant prose?
TF: No, I enjoy his filings and I don’t want to rob anyone else of the experience of reading them. But seriously, Richard is an artist. I think in this entire legal hullabaloo that is an easy thing to forget, and not only is he an artist but he is an artist concerned with words. So, I try not to interfere with his prose to any great extent and simply ensure that it includes reference to legal elements and their supporting facts.
He has an intuitive logic that lends itself to the process and in the meantime I’ve learned so much from him, new words and rules of grammar (especially punctuation), that it’s ridiculous.
VB: Is SLART taking all of your time right now, or are you working on anything else you can tell VB’s readers about?
TF: I’m working on trademark filings for a few residents and in discussions with others concerning some larger projects.
VB: Thanks for taking the time to talk to me. I’m sure readers will find your role here very interesting.
TF: Good to talk to you again.
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