IP in the Metaverse

Ever since Facebook rebranded as “Meta”, everyone has been talking about the Metaverse. But what exactly is it (or could it be) and what does it mean for intellectual property rights? We give a few initial thoughts below.

The Metaverse

As things currently stand, there is no single, settled meaning of the Metaverse. Various publications and commentators have attempted to define what it is, or what it encapsulates, but no universal agreement has been reached.

Views on what it could be range from a fully immersive, virtual reality world along the lines of the OASIS from Ernest Cline’s global bestseller Ready Player One, to a more basic extension of some of the existing and hugely popular gaming worlds like Fortnite and Roblox. Others suggest it will be more focussed on augmented reality, with digital content layered over the real world.

Whilst there is no settled meaning, we can identify a few common themes - it is a virtual, interactive world, likely involving digital goods and services that will offer people more immersive experiences in areas such as gaming, commerce, employment and social interaction.

What does this mean for intellectual property and what should we be considering now?

As with any new technology, the Metaverse may have implications for a number of areas of law. We highlight below a few of the intellectual property issues that have already started to, or are likely to, arise and some of the practical steps that businesses may want to start thinking about now.

• Scope of trade mark registrations: The onset of the Metaverse has given rise to an increase in the number of virtual goods and services being made available. With that comes clear opportunities for brand owners to extend their reach and engagement with their customers, but also increasing risks of infringement. We have already seen various examples of unscrupulous individuals looking to take advantage of various brands’ reputations in order to make a quick buck. In response, several well-known brands (including Nike and Ralph Lauren) have taken steps to broaden the scope of their trade mark registrations to expressly cover certain virtual or digital goods and services. It is hoped that this approach will increase their ability to enforce their rights successfully in the Metaverse and help to protect against bad faith filings. Businesses may wish to review their trade mark portfolios with this in mind and consider whether any such extensions would be beneficial for them.
• Monitoring strategies: Given the largely decentralised nature of the Metaverse and the number of different platforms within it, it may prove more difficult to identify infringements (and, indeed, infringers). Businesses may wish to start thinking about how they intend to monitor use in the Metaverse, in order to help them identify infringements in a timely manner. Appropriate trade mark watches should also be in place to identify quickly any bad faith filings that may be made by third parties.
• IP licences: The arrival of the Metaverse may also have an impact on various terms in IP licences entered into by businesses (both licences in and licences out). For example, whilst many licences (particularly for copyrights and trade marks) currently permit use on the internet, it is untested whether that would include use in the Metaverse. Use in the Metaverse also raises questions of territory. Businesses may wish to start thinking about whether use in the Metaverse should be in or out of scope of an IP licence and consider expressly permitting or prohibiting it where appropriate. Where such use is permitted, thought should be given as to whether that use should be limited to certain specific parts of, or platforms within, the Metaverse and how other provisions might apply in that context (e.g. royalties, exclusivity etc.).
• Metaverse platform terms and conditions: For those that are intending to use Metaverse platforms, it is important to read and fully understand the terms and conditions of each such platform prior to use. Those terms may, for example, seek to transfer ownership of any intellectual property in user-generated content to the platform owner. Alternatively, they might seek to grant the platform owner broad licences to use any such content. Whilst certain rights might need to be granted to the platform owner in order to enable it to operate its platform, users should be mindful of such platforms seeking to overreach.