The “Metaverse” has emerged as one of the most fiercely debated technological developments in the post-covid age. To connect with a younger, tech-savvy consumer base, more and more firms are deciding to debut their products and advertise them electronically through the Metaverse. The race to protect intellectual property rights in the Metaverse is underway, even though there is still some scepticism about the concept. It wouldn’t be overstating things to argue that, in a few years, the Metaverse might influence how we enforce and safeguard intellectual property rights.
The Metaverse is a hybrid of virtual and augmented reality that simulates human interaction in the real world while utilising blockchain technology and digital media concepts. It creates a 3D virtual world that allows for the creation of social relationships.
In the quest to obtain trade mark rights for their brands in the Metaverse, Indian stakeholders are not far behind. According to an examination of the online database of the Indian Trade Marks Registry (“Registry”), many parties have already attained statutory rights on the stand-alone term “METAVERSE” in several classes. Additionally, several METAVERSE-related marks and artwork with the word METAVERSE in it have been registered throughout the courses. In addition to this, several METAVERSE-related trademark applications are several METAVERSE-related trademark applications that are at various stages of the legal process. Thus, it would seem that parties in India are vying for statutory rights to the word “METAVERSE” and METAVERSE-formative marks for all products and services.
Surprisingly, the Registry has been granting such registrations without giving due consideration to Section 9(1)(c) of the Trade Marks Act, 1999, which states as follows:
“The trademarks…which consist exclusively of marks or indications which have become customary in the current language or the bona fide and established practices of the trade, shall not be registered...”
A trade mark is not eligible for registration under this section if it contains words that have entered common usage. Given that the Metaverse has become extremely popular and is a concept similar to non-fungible tokens, blockchains, cryptocurrency, etc., it is unclear why registrations for the name of a concept are being given in the first place.
It’s also noteworthy to note that no trademark applications for goods or services in India have yet to include the term “Metaverse” in the product description. Trademark protection, expressly for usage in the Metaverse, would be ensured by such filings. The word “Metaverse” is present in the description of the goods or services in over ten different countries across the world that have so far obtained registration for those marks. However, several applications for products and services that are meant to be connected to and used in the Metaverse have recently been submitted by numerous different entities.
While some companies have already submitted applications based on various Metaverse-related factors, many other companies are unsure how to classify their Metaverse-related products and services under the NICE Classification. It can be difficult to distinguish between items and services that are offered in the Metaverse and the real world. While Indian courts have not yet made a ruling on this matter, the European Union Intellectual Property Office (“EUIPO”), for example, has offered guidance on how to classify goods and services when filing such applications after noticing an increase in the number of filings about the Metaverse.
Future trade mark conflicts between parties in the Metaverse may turn on the sophisticated and exact categorization of goods and services as a decisive element. Therefore, before filing trade mark applications to safeguard their rights, applicants must be clear on the components and economics of the Metaverse as well as what defines virtual products and services.
Several Indian companies have aggressively used their trademarks in the Metaverse in addition to pursuing legal protection for them. For instance, the Metaverse has been used to promote films like Radhe Shyam and KGF in the film industry. Similarly, well-known FMCG companies such as TATA Tea and McCain Foods have planned metaverse events to introduce their new products to a tech-savvy generation of consumers. Common law rights have now been extended into the Metaverse as a result of such use.
Although Indian courts have not yet considered issues involving trade mark rights in the Metaverse, several aspects of the Metaverse, such as blockchain technology and cryptography, have been examined within the framework of Indian trade mark law. Additionally, the Hon’ble Supreme Court’s statement that passing off must be evaluated not only in light of the competing parties’ current users but also in light of potential future users demonstrates the court’s realization that the market is a dynamic and constantly evolving area. In light of the Metaverse, it follows naturally that the enforcement of trademark rights will change over time.