18th Jun 2024
Every new idea has a value, and the idea’s originator (usually) has the right to protect that value in different jurisdictions – though debate continues regarding AI-generated creations.
One of the many fascinating aspects of intellectual property is how it evolves alongside innovation in every field.
The advent of the metaverse, therefore, presents several new and interesting challenges, from the definition of the “metaverse” itself, to how goods and services related to it, and delivered within it, should be described and classified.
Recently the UK Intellectual Property Office conducted an analysis of the metaverse IP landscape, providing an overview of trends in patent and trade mark applications.
A loosely defined, borderless virtual world
In its introduction, the report notes that the metaverse is “a concept with no clear definition” but settles on a general description of “a shared online virtual space”.
In fact, the term metaverse originates as far back as 1992, which Neal Stephenson’s sci-fi novel Snow Crash described as a place where “humans, as programmable avatars, interact with each other and software agents in a three-dimensional virtual space that uses the metaphor of the real world."
Stephenson envisaged the metaverse as a virtual reality successor to the traditional internet that would seamlessly blend the physical and digital worlds.
Essayist and VC investor Matthew Ball offered a more in-depth update in 2021 – shortly before Facebook changed its name to Meta in October that year – describing it as: “a massively scaled and interoperable network of real-time rendered 3D virtual worlds which can be experienced synchronously and persistently by an effectively unlimited number of users with an individual sense of presence, and with continuity of data, such as identity, history, entitlements, objects, communications, and payments.”
The last part is of vital interest to intellectual property owners: If goods and services can be traded in the borderless environment of the metaverse, brands must be protected there to avoid unauthorised use.
Given analyst predictions that there will be more than 1.4 billion metaverse users and a projected market volume of $490.4 billion by 2030, the opportunities for brands in the metaverse are significant.
Key metaverse IP trade mark data
The IPO analysed its database of 4.1 million applications, seeking matches against a list of core metaverse-related terms.
These terms included “metaverse”, “virtual reality”, “augment reality”, “mixed reality” and “extend reality”, as well as common shorthand such as AR, VR, MR and XR. This approach draws in a wide set of results that include the technology, such as headsets, used to access the metaverse.
The study found 31,503 matches to the list of core terms, including 27,396 matches to “virtual reality”, which first began to appear on the database 20 years ago, according to the study’s authors. There were 831 direct matches for the term “metaverse”.
The IPO’s analysis shows a rapid rise in trade mark applications relating to metaverse core terms between 2001 and 2022.
A peak in 2019 saw 4758 metaverse-related applications and, by 2022, the number of metaverse-related applications had risen 8-fold compared with the previous decade, at 4045 compared with 396 in 2012.
While earlier-dated applications focused largely on goods, with services accounting for just 13% of metaverse-related trade mark applications in 2002, the balance has shifted, and services accounted for 41% of applications in 2022.
Arguably, some services are more naturally suited to a virtual environment than goods. Consider education and training services, for example.
These can be easily delivered in a virtual environment without substantially differing from other methods of service delivery. It may be, therefore, that service providers are seeing more opportunities in the metaverse than goods providers at present.
The rise of “metaverse” in the UK trade mark register
Narrowing down the analysis to applications that explicitly reference the word “metaverse” provides a tighter focus on market activity directly related to it as a concept.
The report reveals that the term was first used to describe goods and services in a UK trade mark application in 2021, and usage increased rapidly over the following two years.
This may coincide with the spike in awareness of the metaverse prompted Facebook’s rebranding as “Meta” in October 2021. In particular, the report highlights the rapid rise in applications from February 2022 to July 2022: an increase of 227%.
As the graph shows, applications for service-related marks significantly outweigh those for goods in the case of specific “metaverse” applications, too.
The months following Facebook’s rebrand saw several major brands move to register metaverse-related marks. This included early metaverse mover Nike, which counts a Director of Metaverse Engineering on its staff, and applied to register its word mark, logo and Just Do It® slogan in Classes 9, 35, and 41, for downloadable virtual goods “for use in online virtual worlds”.
Clarifying Trade Mark Registration in the Metaverse
These applications prompted ongoing discussion about how best to classify and protect goods and services in the metaverse.
The many interdependent issues include whether virtual goods should be viewed as an extension of their physical counterparts; how trade mark use differs in virtual worlds compared to the physical world; and whether the geographic nature of trade mark rights can be reflected in the borderless, multiplatform metaverse.
INTA published a detailed white paper, “Trademarks in the Metaverse”, in April 2023 exploring these challenges. In the same month, the IPO published guidance on the classification of non-fungible tokens (NFTs), virtual goods, and services provided in the metaverse.
It clarifies that NFTs are not acceptable as a classification term alone, but must be listed in conjunction with the asset to which they relate.
Applications should be made in the class of the original asset, with a description incorporating the term “authenticated by non-fungible tokens.
The guidance also clarified that services capable of being delivered virtually – such as our earlier education example – may be acceptably described as being provided “via the metaverse”.
However, where a service differs in nature from its real-world counterpart when provided in the metaverse – such as food or drink provision for consumption by avatars rather than by humans – examiners will seek clarification.
To the Metaverse… and beyond.
It is clear from the IPO’s analysis that brand owners continue showing strong interest in obtaining metaverse-related rights protection.
Like all emerging technologies, the metaverse is travelling along a bumpy adoption curve where initial hype and inflated expectations often give way to a certain amount of disillusionment, before the genuinely game-changing, practical applications emerge.
Nevertheless, brand owners need to ensure they anticipate all possibilities and protect their rights accordingly. As a result, monitoring the level of metaverse-related trademark activity should prove an interesting bellwether as this dynamic new world emerges.
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