Weird Science! It’s My Creation . . . Is It Really? Or: Crafting a New Universal Trademark Standard for User-Created Avatars

In modern trademark law the process of registering a valid trademark is straightforward. In the United States the Lanham Act is the ruling law of trademark law. The Lanham Act grants protection to the owner of a registered mark which is distinctive and used in commerce. Assuming all the requirements are met, the owner of a mark can use the mark within its discretion and enjoy the protection under the Lanham Act.

As trademark law has continued to evolve, the law has expanded to protect previously unforeseen categories. The two most obvious examples which demonstrate the evolution of protection under trademark law are trade dress and antidilution protection. These two areas demonstrate trademark law’s ability to evolve to address areas not recognized through established law. Nowhere is an adaptation of trademark law required more than in user-created avatars.

The emergence of user-created content has begun to become a common occurrence within the areas of electronic media. Video games can currently give players a blank slate upon which they can build their own creation. Issues however arise when there are inquiries into who legitimately owns theses creations and what protections they are afforded.