Lawsuit of the Day, Sex

Lawsuit of the Day: Getting Off on Knock-off Virtual Sex Toys

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Second Life is a virtual world where people can create avatars and live “second lives” online. Started in 2003, it claims to be the largest such virtual community. The appeal seems to be that it’s just like real life — people “have jobs, purchase land, commit crimes, build homes and careers, make friends, fall in love, have sex, visit museums, and make and spend money” — except in Second Life, your avatar can also do crazy things, like fly, change appearances, and have really nasty sex.
We’re intimately familiar with neither Second Life nor sex toys, but our understanding is that the two go hand in hand. Eros LLC, a virtual sex toy maker, has apparently made a pretty penny selling sex goods in Second Life. But now other Second Life vendors are ripping off its designs and selling knock-offs. Eros’s CEO Kevin Alderman — who goes by Stroker Serpentine in Second Life and built the first in-world sex bed, a digital bed with built-in sex position animations — is filing a class-action suit against Second Life’s creators for enabling this virtual counterfeiting.
Alderman, who has been called “the ‘Hugh Heffner’ of the digital millennium,” wants Second Life to shut down its virtual version of Canal Street (counterfeit central in New York). From MediaPost:

Entrepreneur Kevin Alderman, who sells virtual erotic goods in Second Life, said in court papers that [Second Life creator/owner] Linden Lab allows other virtual marketers to offer knock-offs of his “SexGen” beds and other products.
“Eros’s virtual erotic SexGen products sold for use in Second Life have been counterfeited, cloned, and ripped off countless times by a multitude of Second Life residents,” the lawsuit alleges. “The manner in which this has occurred is akin to the knockoff handbags and purses sold near Canal Street in New York City. Some of the bags are stolen, but actual brand-name handbags sold at deep discounts, while many others are knockoffs that merely use the brand-name makers’ designs and trademarks.”

Circuit judge Richard Posner has weighed in on patent infringement of sex toys before, ruling that a company couldn’t patent the glass dildo. But what about virtual sex toy counterfeiting? We’re entering virgin territory here.


Alderman has company in the suit. His fellow plaintiff is Shannon Grei, a designer who sells virtual clothing in Second Life, and has had cheaper virtual brands stealing her styles. They’re seeking class-action status in the lawsuit, which was filed in U.S. District Court in the northern district of California.
The sex toys and clothing may be virtual, but the profits to be made are very real:

Alderman has taken in more than $1 million for selling products like his virtual beds, which go for around $20 to $40, according to his lawyer, Michael Aschenbrener of KamberEdelson.

This is a unique suit. Read the complaint here [PDF]. We warn that it’s not very sexy. The lawsuit is though:

Eric Goldman, director of the High Tech Law Institute at Santa Clara University, said that courts are still figuring out the issues raised by this type of lawsuit. “It’s not an easy case,” he said. “This particular area of law is unsettled.”

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Patent IP lawyers, this is your time to shine. Get it on in the comments.
Second Life Sued For Allowing Sale Of Impostor Virtual Goods [MediaPost News]
Complaint [PDF]

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