As we discussed earlier in
an IP & NFT newsletter, how do people believe in
having IP rights after buying an NFT and
how IP (especially copyright) laws safeguard the rights of the IP owners.
This time around, we discuss how trademarks delve into the virtual world.
The digital space has taken the world by a
storm. While doing so, numerous questions remain in the virtual world
concerning its impact on intellectual property rights, particularly
trademarks.
From connecting via corded landlines to
smartphones to virtually hanging out with friends, Metaverse might
seem far-fetched.
Metaverse – A cohort that is the successor to
today’s internet. Made up of shared, online, and digital world can be
summarized as a combination of digital layers over the physical world (such
as Augmented Reality mobile game - Pokémon Go) and characters in artificial
worlds (such as movie - The Terminator-2) and the global internet. In
layman’s language, a three-dimensional virtual world where people could
socialize, work, play, shop, etc., and do anything in the real world.
The race to own the Metaverse and fashion’s
virtual IP is on. For consumer brands, Metaverse is the “new big
thing” for how brands will communicate with consumers. Although, customers
will be able to experience the products and services without a single item
ever being physically produced or available.
Nevertheless, in November, third-parties filed
two trademark applications in the United States to use the Gucci and Prada
logos in various metaverse-related arenas, including downloadable virtual
goods virtual clothing used in virtual spaces. Moreover, on a metaverse
platform (such as Roblox), creators sell clothes that feature logos of
famous brands such as Louis Vuitton, Chanel, and Prada.
Given that this online evolution and the rise
of the Metaverse, the rebranded Meta’s Mark Zuckerberg says – is capable of
being touted as a $1
trillion opportunity.
While there is much excitement and skepticism pertaining to digital assets
such as NFTs and cryptocurrencies, several companies and individuals are
ramping up efforts to provide virtual goods and services in the Metaverse,
which has even resulted in a spike of filing trademark applications in the
United States Patent and Trademark Office (USPTO). While Metaverse is
digital and will take place virtually, its creation undoubtedly impacts
trademark rights in the real world.
McDonald’s is one of the recent corporations to
file a few trademark applications to operate a virtual restaurant featuring
actual and virtual goods. Also, it seeks to protect its marks “McCafé”
& McDonald’s for registration in connection with entertainment
services. The trademarks would safeguard the idea of a McDonald’s
restaurant in the virtual world that will be capable of selling both
virtually and in the real world.
Several other popular brands have also filed
trademark applications seeking protection in the Metaverse, such
as Panera Bread’s application for PANERAVERSE (virtual food), Walmart’s application
for WALMART (creation and sale of virtual goods),
Jay-Z’s application for JAY-Z (music & clothing), Brooklyn Net’s
application for NETAVERSE (entertainment services), Nike’s
applications for NIKE,
JUST DO IT (virtual
goods), etc.
The laws have yet to catch up with the
Metaverse. However, the most relevant trademark classes in the sphere of
the virtual world are Class 9- Computers, Software and
Electronics, Class 35- Advertising, Business management
& Business administration, and Class 41- Education,
Entertainment and Training.
In a famous case of Hermes
v. Rothschild and the MetaBirkins Saga, Hermes lodged a complaint alleging trademark
infringement, unfair competition, dilution claims against the respondents
in nearly a 50 pager complaint, alleging Rothschild who is a digital
speculator seeking to get rich by appropriating the brand METABIRKINS for
use in selling, marketing, creating digital assets by just adding the
generic term “META” to Birkin (Hermes’s trademark).
This case raises significant issues for brand
owners planning to enter into Metaverse with a promising lucrative future.
While the Metaverse itself is a swiftly evolving space, brand owners must
be ready to take action in safeguarding their marks with as much diligence
as in the physical world.
As the Metaverse comes to action over the next
few years, as we swap our phones for smartglasses and a pocket computer,
Intellectual Property laws will need to evolve in the race against
technology.
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