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And every Avatar will shape us

The Metaverse is here to stay.  Proof of this is the proliferation of information that flows, with increasing pace, not only on the Internet, but also in all kinds of legal, technological, and social forums, thus being a reality increasingly present in the media and, consequently, in our daily lives.

Trying to simplify, the Metaverse is characterized for being a virtual space in which we connect through devices, like virtual reality (VR) and augmented reality (AR) glasses or headsets, or even through apps, that offer an immersive experience, in which it seems that we really are in that virtual place, interacting with other people and objects.

In this alternative world, there is a new interaction form between consumers and trademarks through D2A model (direct-to-avatar), where we will stop, for example, buying clothes for ourselves, but rather do it for our representation on the Metaverse, our Avatar. By means of our Avatar, we can live “another life”, buying assets and services, going to concerts, travelling, playing and even working.

Therefore, the Metaverse is a unique market with infinite opportunities, especially in the commercial sector.

According to the innovation agency “Wildbytes”, it is expected that, by 2023, some companies owning major trademarks will launch new products in the Metaverse, while others pretend to build malls, boutiques and virtual stores, where Avatars will be able to buy products and pay with cryptocurrency.

Currently, Gucci is already selling their own virtual clothing, in particular Gucci Virtual 25 sneakers, while H&M recently launched their own virtual collection, through the Nintendo videogame “Animal Crossing”.

Also, there are trademarks that go further, like Nike, that created their own virtual universe, Nikeland, which can be accessed through the gaming platform “ROBLOX”.

Then, we come to the essence of this article: trademarks.

It seems clear that the brand use in the Metaverse raises new legal situations that must, in an urgent matter, be clarified. How can an entity protect their brand in these spaces? If an entity already has a trademark register, can it be used without risks in the Metaverse and avoid others from using it?

The answer to the first question, specifically with respect to Portugal and most European Union countries, will be that any entity that wishes to have an exclusive right of use for a trademark must register it, and this right can be enforced not only in the real world, but also in any digital space.

In terms of the second question, if the trademark registered does not protect assets and services in the virtual area, then the owner cannot use it, in case of a possible infraction to the trademark rights in the virtual universe.

Since there is still no specific legislation about this matter in some countries like Portugal, it should be noted that last month the European Union Intellectual Property Office (EUIPO) published their guidelines on new trademark registration applications in the European Union that are intended to encompass assets and services in the digital environment, specifically for activities in the Metaverse, highlighting that terms such as “virtual products” and “non-fungible tokens” (NFTs) should be used in this kind of registrations and stablishing the classifications (9,35 and 41) in which assets and services mut be in.

Unless a better opinion is reached, such guidelines are precisely in the sense that, to protect their trademarks in the Metaverse, owners must include virtual products and services in the protection scope of their trademarks, under penalty of seeing, in a virtual space, which is increasingly being confused with the real space, their trademarks being used by third parties, taking advantage of market acquired positions and the reputation of third party trademarks.

According to a study published by the above mentioned “Wildbytes”, the investment in the Metaverse will increase tenfold in 2022, in comparison with 2021.

In fact, we are facing a crescent tendency that, according to the evidence, will soon become our “reality”.

Therefore, it will be up to trademark owners to adapt to these new times, in which the Avatar will be an integral part of our daily life and will shape it.

Manuel Gil