A new digital universe – the Metaverse is dubbed to be a network of virtual worlds that can exist in parallel with the real world, and the more intangible value we place in it the more tangibly valuable it becomes.  Built on virtual and augmented reality technology and powered by digital currency, the Metaverse can be accessed through various platforms, each of which has its own digital currency with exchange rate against the US$. An NFT (a non-fungible token) is anything that can be bought in the Metaverse, like virtual land, vehicles, art, wearables or concert tickets. The person enjoying those experiences is you, as an avatar. 

This all sounds exciting, and no doubt scary, as with anything that represents a change in the way we are used to conduct our life. Tech companies and large corporations are paying close attention to this change. Some of them have started investing heavily in what may be their next business platform while in the interim looking to find ways to protect their intellectual property from being exploited in this new digital space. 

NFTs are intended to represent original digital content that can be bought in the digital world. A concept that closely mirrors the exchange of goods and services in the real world. And a concept that retains the downfall of counterfeits and lookalikes. Well-known brands have already acknowledged that and have started to take action. 

Brands have expanded the scope of their trade mark protection by filing for, in many cases, unconventional for them categories of goods, like: 

• downloadable virtual goods, namely computer programs for the creation and trade of digital collectibles using blockchain; (class 9)
• virtual reality software; (class 9)
• store services featuring virtual clothing and accessories for use in online virtual worlds; (class 35)
• virtual auctions; (class 35)
• virtual reality currency services; (class 36)
• virtual chatrooms; (class 38)
• online non-downloadable virtual clothing & accessories for use in virtual environments; (class 41)
• entertainment services, providing online virtual concerts and other virtual events; (class 41)
• virtual reality online game services; (class 41)
• design and development of virtual reality software; (class 41)
• operating a virtual restaurant; (class 43)

This is unprecedented list of goods and services for a fashion brand or a food chain, as although not typically in the business of VR and AI technology, now they are look to adapt to a new platform on which their traditionally non-digital goods will be traded. 

The above selection of terms is illustrative of how the Nice Classification system for trade mark applications is being re-interpreted. The starkest example is the transition of clothing from class 25 to class 41. Class 41 typically covers services like ‘provision of ‘online non-downloadable digital images, audio and video’ while goods like ‘clothing and accessories’ fall in class 25. Here the prospect of selling clothing in a virtual reality equates a piece of clothing to a digital image. 

 A new technological development characteristically opens the debate of how the law can capture new trade mark use or infringement scenarios. Intellectual property rights are now even more important to consider.

It is a new and exciting area not only from a trade mark law development point-of-view but also from a business perspective. Physical stores have started to consider accepting cryptocurrency and creating a digital extensions of their brands. All of this is attracting new younger consumers and could even be a more sustainable way of business. So much more to see and hear on this topic.