Second Life Patent and Trademark Office Illegal in Australia?
Impact and Virtually Blind blogs report that “the Second Life Patent and Trademark Office (SLPTO) has opened its doors.” The SLPTO appears to have no connection with the owners of Second Life, Linden Lab.
The SLPTO website states: “We allow you to register, protect, and add value to your Second Life creations to protect your intellectual property rights”. Section 157 of the Trade Marks Act 1995 (Cth) prohibits use of the words "Trade Marks Office" and "words of similar import" in this jurisdiction. It states:
Similarly, section 177 of the Patents Act 1990 (Cth) prohibits false representations about the Australian Patent Office.“(1) A person:
(a) must not:
(i) place, or allow to be placed, on the building in which his or her office is situated; or
(ii) use when advertising his or her office or business; or
(iii) place on a document, as a description of his or her office or business;
the words "Trade Marks Office" or "Office for registering trade marks", or words of similar import (whether alone or together with other words); or
(b) must not use in any other way, in connection with his or her business, words that would reasonably lead other persons to believe that his or her office is, or is officially connected with, the Trade Marks Office.
Penalty: 30 penalty units.
(2) An offence under this section is an offence of strict liability.
The SLPTO website also states: “What we are not: we are not any kind of legal authority. We can not file a lawsuit on your behalf, and can not make a virtual world remove items. We seek to assist you in protecting your intellectual property, but should not be viewed as a governmental legal authority of any kind.”
However, the disclaimer is probably ineffective as section 157(2) of the Trade Marks Act renders the conduct a “strict liability” offence. “Strict liability” is clarified in Division 6 of the Criminal Code Act 1995 (Cth) as follows:
- there are no fault elements for any of the physical elements of the offence;
- the defence of mistake of fact is available; and
- the existence of strict liability does not make any other defence unavailable.
Second Life’s SLPTO appears to be committing one or more offences in Australia, and it is of limited utility without an enforcement mechanism in any event. It is trite law -- but apparently still needs to be said -- that real world institutions and the law they govern apply to these virtual worlds. Grown ups playing ‘lets pretend’ in these virtual spaces should remain aware of the ‘meat space’ laws that apply.
