Suspended listings due to copyright / trademark issues

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Yoyo Crescendo
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Suspended listings due to copyright / trademark issues

Post by Yoyo Crescendo » Fri Aug 14, 2015 2:10 am

I recently noticed that 2 of my full body meshes were suspended due to "breach of T.O.S".
Both I worked very hard on.
I recently noticed there are listings like
https://www.kitely.com/market/product/3 ... 1-DK2-Case
that have many sails.

Is there something I don't know?

Should I make a list of all the items I see with questionable content?

I have read the T.O.S and would like to know why my items are suspended.

P.s. in no way am I angry or trying to be negative to Kitely or its creators, I just would like to know why.
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Ilan Tochner
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Re: Suspended listings due to copyright / trademark issues

Post by Ilan Tochner » Fri Aug 14, 2015 2:25 am

Hi Yoyo,

We were not aware of the listing you linked to. Now that you brought it to our attention it has been suspended as well until we can determine whether or not the merchant who listed it has a license to sell items that use that trademark.

Your product listings were suspended for similar reasons. Our IP guidelines require you to have a written license to sell trademarked items in our marketplace. Do you have such a license for the items we suspended?

If you don't have a license to sell such trademarked items then please delete those listings from your Kitely Market store.

Pleas see: https://kitely.atlassian.net/wiki/displ ... l+Property

Please let me know if you have any questions.
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Dot Matrix
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Re: Suspended listings due to copyright / trademark issues

Post by Dot Matrix » Fri Aug 14, 2015 9:03 pm

A set of Oculus Rift accessories was given out as a prize in the OpenMetaQuest at last year's conference. It is credited as follows in the description field:

https://forums.oculus.com/viewtopic.php?t=1514
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Ilan Tochner
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Re: Suspended listings due to copyright / trademark issues

Post by Ilan Tochner » Fri Aug 14, 2015 9:15 pm

Hi Dot,

While the creator of those Oculus products stated that they can be used by people as long as they attribute the creator, it still doesn't mean the items may be sold in Kitely Market. Please see the following provision in our IP guidelines:
Don't sell other people's "freebie" content in the Kitely Market. Products which are provided by their creators for free outside the Kitely Market are not allowed to be sold in the Kitely Market even if those products are licensed in a way which permits people to sell them. The only exceptions to this rule are:

* You are allowed to sell items you created yourself from scratch even if you give them away for free outside the Kitely Market.
* You are allowed to sell "freebie" content which is licensed for use in Kitely if it is designed to be used as a building component and your augmentation adds clear value to it - the product you sell can't be just a minor tweak of other people's "freebie" content.
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Brayla Sana
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Re: Suspended listings due to copyright / trademark issues

Post by Brayla Sana » Thu Sep 10, 2015 2:58 pm

This is a very interesting presentation I found by a California Copyright lawyer:

http://www.arnoldporter.com/resources/d ... %20Use.pdf

It covers the concept of nominative fair use - when using a brand is fair use and not infringement. I think the question here is whether the brands consider the mark usage to be "fair Use" or not. There are a number of items in the home decor area that fall under this category, like foods, drinks, etc. and other things like guitars, guns, etc. On slide 25, it describes a lawsuit between EA and American tank maker Textron over the use of Textron made tanks in Battlefield 3. The suit was settled out of court, so sadly, we will never know the outcome of this one. As EA has used this fair use defense before, eventually I think we will see this type of suit end up in USA court.

Coca-Cola brands gave Second life users permission to use their branding and trademarks in inworld items long ago. http://wiki.secondlife.com/wiki/Coca-Cola I am unsure how or if this applies to opensim as well.

Traditionally, George Lucas has allowed Star Wars trademarks and characters to be used in fansites and 3d worlds as long as the users are not making money from the items (selling them). How this is handled going forward now that Disney owns these trademarks, remains to be seen.
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Brayla Sana
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Re: Suspended listings due to copyright / trademark issues

Post by Brayla Sana » Thu Sep 10, 2015 3:42 pm

I had more thoughts:

As Halloween costumes in real life are usually licensed, I am unsure how character trademarks (like marvel characters,etc) used to make avatars apply. Yoyo and anyone else making avatars from trademarked characters would probably have to license them from Disney, who owns Marvel, Muppets, LucasArts in addition to traditional Disney properties.

As far as the Kitely Market itself goes, I would probably have your lawyer's office draft a nominative use disclaimer in your terms of service, sort of like:
All other trade-marks not owned by Kitely.com that appear on this website are the property of their respective owners, who may or may not be affiliated to, connected to, or sponsored by Kitely.com.
Just to be safe.
My disclaimer disclaimer: I am not a lawyer. This is a sample. :D
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Ilan Tochner
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Re: Suspended listings due to copyright / trademark issues

Post by Ilan Tochner » Thu Sep 10, 2015 9:23 pm

Thank you Brayla,

The way our lawyers have chosen to handle this type of liability is using (A) the language in the "Copyright and Trademarks" section of our Terms of Service, (B) the following paragraph in the Kitely Market section of our TOS:
You may not sell Items that contain brands, trademarks, copyrighted content, or any other sort of intellectual property for which you do not have an explicit license from the intellectual property owners to sell in the Kitely Market. You must mention the existence of such a license in the Kitely Market Item listings of any Items that include third-party content which was not bought in Kitely Services. You agree to provide the Company with documentation proving the existence of these explicit licenses upon request.
And (C) the following paragraph in the Proprietary Rights section of our TOS:
We claim no ownership or control over any Content submitted, posted or displayed by you on or through Kitely Services ("User Generated Content" or "Items"). You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any User Generated Content you submit, post, display, or sell on or through Kitely Services and you are responsible for protecting those rights, as appropriate. By submitting, posting, displaying or selling Content on or through Kitely Services you agree to allow Kitely to handle your User Generated Content in all the ways required to provide the Kitely Services you elected to use.
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