With the rapid expansion of the interconnected world, augmented reality, and virtual reality, it seems we have a “metaverse” on our hands. Consequently, the USPTO has seen a jump in the number of trademark applications to protect goods or services in this expanding virtual landscape. And indeed, intellectual property (“IP”) rights can be protected in the digital sphere, including trademarks, trade dress, and copyrights, among others. But before taking that step, IP owners should first take a hard look at the virtual platforms on which they intend to market goods and services in order to assess the risks of doing business in the expanding Web 3.0 landscape, where changes in IP law are inevitable.
What are the questions that IP attorneys should be asking on behalf of their clients? There are many, but here are a handful that foreshadow the complexities of digital brand protection:
- What are best practices for a thorough IP licensing arrangement with a metaverse platform provider? How do you anticipate future use and scope as the space evolves?
- How do you protect and enforce your IP when it interacts with user-generated content? What do you do about counterfeit digital goods or infringing content?
- What happens when virtual worlds are combined with real worlds in the form of holograms or other digital technologies? What would IP rights look in that scenario?
- What if your trademark is successful in the virtual world and is deemed “famous” there, but not in the real world?
With any burgeoning frontier there will be new scenarios and new questions of procedure around every bend, and we should expect Web 3.0 to fire them at us fast and furious. The one thing we know for sure, more and more businesses will decide to move headlong into the metaverse and, as with any market, there will be confusing or identical use of trademarks by third parties. So, if you’re a brand owner, be proactive. Work closely with your IP attorney to set business goals for the metaverse, define a set of clear IP licensing arrangements with platform providers, and be prepared to monitor trademark use in the metaverse. And if you’re an IP attorney, by all means, stay up to speed on this fast-moving digital galaxy. Then hang on for the ride.