We’ll remember 2021 for the “Metaverse”. Imagine sitting in your favourite chair with a freshly brewed coffee. Wearing 3D gear, you visit your virtual seaside property, where your avatar enjoys virtual coffee made by an identically branded virtual coffee machine.
Like everything in the Metaverse, it’s all about data. Exactly how will data, including most importantly our personal data, be used and shared, to establish our virtual identities? How will virtual representations of real-world products and services be protected?
Will IP rights persist and if so which ones?
The outcome may be epically important for businesses planning to offer virtual products and services in the Metaverse.
Real-world products and services may be protected by valuable IP rights (patents, trademarks, industrial designs and copyrights), governed by national governments and global treaties. In real-world cases, an owner of IP rights can enforce them against unauthorised activities.
Yet will those same IP rights be enforceable if the unauthorized activities occur (or originate) in the Metaverse?
Two factors may determine the outcome: virtual unauthorised use leading to a real-world unauthorised use, and second, a physical location tied to the virtual use, for purposes of determining the legal jurisdiction for enforcing IP rights.
When your avatar starts the virtual coffee machine, it’s not an actual physical “use”, but rather a representation of one. The design embodied in the virtual coffee machine may be identical to the real-world version, and may have a direct bearing on a real-world purchase. Your friends might drop by for a virtual visit to enjoy a virtual cup of coffee from the branded virtual coffee machine, after they hear that you “love the coffee.”
This might lead to an unlicensed competitor selling an unauthorised coffee machine. The IP rights holder could act against the unauthorised manufacture, use or sale of the physical coffee machine, in jurisdiction(s) where the unauthorised coffee machine is manufactured, used or sold (provided that the IP rights are enforceable there).
However, the IP rights holder would need evidence of both the activities and the location where they occurred. In the case of your friends, their web address would be a key indication of the location but only if that information is available and not “anonymised” or otherwise privacy protected.
Global economies have been governed by national governments as regulators of our current IP infrastructure. Meanwhile, rudimentary segments of the Metaverse have been around for some time, as gaming, role playing and social platforms, which are the property of the domain owners, as the gate keepers of these rich virtual experiences.
Your virtual seaside property might be accessible by one domain, with the real-world purchase of a virtual product or service available by a partnered link (or bridge) to another domain. Owners of those domains may emerge as “intermediate regulators” which may interrupt our current regulatory IP framework for virtual products and services with essentially no real-world link.
The Metaverse could massively challenge the global IP regime. Time will tell, and perhaps sooner than we can even imagine.
Written by Jim Gastle, an IP enthusiast, Canadian patent agent and Co-Founder of Terrifio
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