Protecting Trademarks and Brands in the Metaverse

What’s the metaverse, and why is it important to brand and trademark owners?

According to Wired,

Broadly speaking, the technologies companies refer to when they talk about “the metaverse” can include virtual reality—characterized by persistent virtual worlds that continue to exist even when you're not playing—as well as augmented reality that combines aspects of the digital and physical worlds. However, it doesn't require that those spaces be exclusively accessed via VR or AR. Virtual worlds—such as aspects of Fortnite that can be accessed through PCs, game consoles, and even phones—have started referring to themselves as “the metaverse.”

The metaverse isn’t to be confused with Meta Platforms, Inc., doing business as “Meta” – the company formerly known as Facebook. However, Meta does intend to be a major player in the metaverse.

As The Washington Post reported,

For years, [Meta CEO] Mark Zuckerberg has extolled a lofty vision of the metaverse where virtual reality-powered services will transform every aspect of people’s lives, from school environments to their family time.

Meta recently introduced a $1,500 virtual reality headset that integrates with Microsoft products and is being marketed as a metaverse workplace productivity tool.

As TechCrunch reported, Meta also announced that its metaverse avatars, which were “previously floating torsos with arms and heads,” will soon have virtual legs.

There will also soon be a Meta store where people can spend real-world money to accessorize their metaverse avatars.

Selling avatar clothes, accessories, weapons, and even dance moves can be big business.

For example, Fortnite, a free metaverse zombie-shooting game, brought in revenues of $1.8 billion in 2019. As Investopedia explains,

The monetization occurs when the player wants to acquire additions, dubbed "costumes" and "skins," which they have to purchase. While users can continue to play Fortnite for free, a vast majority of players pay for these ancillary products that generate vast amounts of revenue for Epic Games.

Fortnite also sells character “actions,” called “emotes.”

Recently, Fortnite was able to get dismissed a claim that one of its emote dances infringed a choreographer’s registered copyright.

How can brand and trademark owners prepare to face the metaverse?

• Brands can plan for how their marks, logos, products, and trade-dress will appear in 3D metaverse versions and register those versions with the US Patent and Trademark Office (USPTO) and other relevant trademark organizations.
• A trademark application for a 3D mark must include a description stating that it’s 3D as well as a drawing showing the proposed mark in all three dimensions.
• Just as brand owners now police the internet and marketplaces like Amazon.com for infringing products and misuse of their trademarks, they can prepare to police the metaverse as well.

Brand owners also need to be aware of parodies that could damage their brand value. For example, as The Drum reported, the hit game series Grand Theft Auto (GTA) often spoofs real-world businesses:

A previous entry in the franchise, GTA: San Andreas, was the subject of a lawsuit when a strip club in the real world claimed its in-game equivalent too closely matched the reality. While the game’s publisher Rockstar won that case, it set the tone for conversations about potential abuses of the metaverse.