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There are three new filings in the SLART trademark suit.  First, Philip Rosedale and Mitch Kapor have filed a Motion to Dismiss (.zip, w/exhibits) arguing that Minsky’s fraud claims lack sufficient specificity.  Minsky has responded (.zip, w/exhibits), and has also filed an Answer (.zip, w/exhibits) to Linden Lab’s counterclaims.

There’s not too much to say about this round of filings. The motion to dismiss the fraud claims against Rosedale and Kapor was expected.  Because of historical misuse of fraud claims, plaintiffs must plead fraud “with specificity” alleging specific fraudulent statements and explaining why the statements are fraudulent.  VB does not speculate on rulings in active cases, but I will note generally that fraud claims are often dismissed on these grounds.

Minsky’s formal Answer to Linden Lab’s counterclaims is fairly straightforward, generally consisting of boilerplate affirmations and denials, as is traditional in formal Answers in U.S. legal proceedings.   Minsky, who represents himself in this action, does include more argument in his Answer than is typical — for example, Minsky admits that he agreed to the Second Life Terms of Service, as Linden Lab alleges, but then argues that another court found the TOS in part unconscionable — but otherwise the Answer is unremarkable.

Up next?  The beginning of discovery, and a likely decision from the court on Minsky’s earlier motion alleging that Linden Lab is not in complaince with the preliminary injunction the parties agreed to covering SLART infringement claims while this case is pending.

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One Response to “SLART Update: Rosedale and Kapor Move to Dismiss, Minsky Responds, and Minsky Answers Counterclaims”

  1. on 28 Nov 2008 at 8:15 pmB.R.

    This is another very interesting case to test the Second Life terms.

    It seems that just like Bragg, Minsky has some fault of his own to be guilty about. (Slut and Fart huh! Who are you trying to kid here?) But Linden Research in somewhat in fault and perhaps liable for abusing their own terms by changing them in order to gain ownership over the “SL” mark, which by all means their previous terms neither prohibited nor discouraged its use prior to the trademark filing in June 5, 2007

    The fact of the matter is that the “SL” abbreviation became a commonly used noun apparently first used by residents themselves to refer to “Second Life”.

    I see no indications that Linden Lab had the “SL” mark in mind for themselves to begin with. There was no clear marketing or endeavor shown from them to justify it. It seems they rather decided that they should gain ownership of the mark along the way when the company thought it was suddenly in their interest because the abbreviation implicated a strong and efficient association with Second Life.

    The only stretched association that could be claimed by Linden Lab would be a reference to the logo, with the letters placed backward, however it is somewhat clear it was meant to refer to the Linden Dollars and not to “SL”. And the absence of claim for First Use Date of “SL” on the USPTO filing would confirm that.

    In addition, their previous attempt to claim ownership of the mark “Grid” (as a standalone word) as they tried to do, was unconscionable and somewhat a clear sign they were actually pushing the envelope as to what they could try to get away with. The trademark claim over a two letter abbreviation alone, which can also stand for real life cities as location for example, could be a be a hard case to the make to a court.

    In a way, I am glad that this lawsuit comes up now. It’s a complex case and I am curious to see what the court will rule, and what would this mean for a company seeking the trademark of an abbreviation of its name only after the fact that they first “allowed” AND had no registered filing or claim of such ownership in the first place.

    Ultimately Minsky will lose his trademark, but the question in my view is whether Linden Research is entitled to be suing SL fan sites with cease and desist letters like that and itself being granted the “SL” trademark in all legitimacy considering its own flaws.

    Also one could argue that the “Sherrill-Lubinski Corporation/SL Corporation” has a legitimate interest in filing opposition to the “SL” mark. Their line of business “Interactive Monitoring and Visualization” is not that far out in terms of business classification (Computer software for applications used in monitoring, aggregating, analyzing, or viewing data, messages, applications, grids, services, or events). Besides the 3D aspect its awfully similar in types of Goods and Services from a practical standpoint.

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