As I sat down to write this, it occurred to me that not much has changed with the "old timers" in the adult business over the past two years. If you'll recall, I wrote an article called "The Virtual Future of the Sleeping Sex Industry" for the July 2001 issue of AVN Online. It was always my intention to write a follow-up to announce how the industry had awakened. Instead, I keep finding more examples of an even deeper slumber than I originally perceived.
Case in point: Trademarks. We all know about brands like "Kodak" and "Polaroid"; some folks in the adult industry learned the hard way about "Playboy," when Hef and Co. went on the hunt for Websites infringing on their trademark. And it was important that they did. "Aspirin" at one time was a trademark owned exclusively by Bayer, but Bayer didn't police their trademark, resulting in other companies - and consequently, the public at large - to refer to acetacylic acid (what aspirin actually is) as "aspirin." When this eventually came to trial - after Bayer woke up - the court ruled that because they had not policed their trademark, "aspirin" had become the generic term for that particular pain reliever. Now, you can walk into every pharmacy in America and see multiple brands of "aspirin."
But "Kodak," "Polaroid," and "Playboy" are the "obvious" trademarks that all of us know on sight. What concerns me is companies trying, and succeeding, in registering common phrases as trademarks, especially ones that concern our industry. One that came to my attention is Digital Playground's registration of "virtual sex" as a trademark. Now, many of you will say, "That's silly! You can't register virtual sex! It's a common phrase." I'll bet a lot of you out there have it in your key words or metatags. You probably use it to describe cybersex on your Website. Well, pretty soon, you may have to say "sex without actually being there," or maybe "sexual relations in a virtual reality environment." Because my friends, you won't be saying "virtual sex." Not without referring to Digital Playground's group of products.
That's right, Digital Playground applied for the trademark a little over two years ago, and at the time of this writing, they had reached the stage of the process known as "filed for opposition." What this means is they are a hop, skip, and a time stamp away from owning the right to say "virtual sex" in any context related to our industry. And if you do it without DP's permission, you can bet that the lawyer brigade will be around to see you. I have already witnessed 20 affidavits from distributors who have given up the right, in order to avoid legal action.
The trademark file, or "wrapper" as they call it in the U.S. Patent & Trademark Office, is more than 600 pages in length. I know because I stood there in the office and went through every page as dignitaries walked by, wondering what this handsome guy (okay, slightly balding, overweight, and middle-aged) was doing, going through pages of censored adult magazine ads and legal pares, and photocopying them (at 25 cents per page, mind you).
As it turns out, I'm the only guy in the adult industry who filed what is called "extension of time to file opposition" under the deadline in order to oppose the registration.
I should point out that I have a financial interest here. As you may or may not know, my company manufactures the Virtual Sex Machine. Since the phrase "virtual sex" is a part of my product, if this trademark registration "issues," my company could be in violation.
My question is, how many of you use that phrase without thinking? How many of you selling DVDs, tapes, and streaming video have a category on your site or in your store called "virtual sex?" How many of you use it in common speech to reference the broad topic of anything computer- or sex-related?
I contacted anyone I could find who would obviously be affected by this registration; I didn't want to be the only guy fighting and footing the bill for legal battle to come.
Alas, much of the industry, it seems, is still asleep. I heard back from one concerned company - after the time to oppose had expired.
I asked J.D. Obenberger for his opinion on the matter, and his response was, "How interesting." Does a lawyer saying that make the chills run down your spine like it does mine?
As far as I know, mine is the only opposition timely filed. I will keep you posted as things progress. You can also follow the action on the Patent & Trademark Office's Website, at www.uspto.gov.
And take my advice: Watch your back, and watch your investments.
Eric J. White is the CEO of Virtual Reality Innovations, Inc. (www.vrinnovations.com).
