Trademark registration for metaverse virtual goods is a hot topic i n the headlines these days. Increasingly, it is also a hot topic in courtroom disputes. Parties are alleging trademark infringement is occurring in the metaverse, in other words.
This article aims to shed some light for the lay-reader on these topics.
It will also answer the basic question of whether or not you should register a trademark for metaverse virtual goods you may be selling or offering through platforms like Second Life or others.
Long story short: you should. But, first, some basics.
What Is the Metaverse and What Virtual Goods Are Sold There?
The metaverse is nothing new. It is, in short, a self-contained or interlinked digital space created to allow people to interact with one another through the internet, either in conjunction with the playing of an online game of one sort or another or as a standalone communications platform. People interacting with one another through a metaverse platform generally do so by way of “avatars,” or digital bodies, which are the forms in which the players are perceived by others on the platform.
Your avatar may be a simple, cartoonish digital caricature of your actual physical form in the metaverse. It could be opposite-gendered. It could be a 10’ tall, axe-wielding half-orc barbarian. It could be a talking table lamp.
The options are endless.
If you’ve played World of Warcraft, for example, however, you have participated in the metaverse. Your character in that game is an avatar.
If you’ve played Second Life or used a virtual reality headset and game or platform, you’ve set foot in the metaverse.
The metaverse has been much discussed since Facebook’s “Meta” corporate re-branding, but, technologically and practically speaking, it has been around for quite a long time. The hullaballoo now is a result of Mark Zuckerberg’s very publicly stated goal of embracing the “metaverse” as a business strategy. It’s where (the now re-named) Meta entity wants to move.
You yourself may already be there, however. You may, in fact, already be selling a virtual product in this virtual world, in fact.
Wait, selling in the metaverse??
You bet. It’s done every second of every day in World of Warcraft and Second Life and any other massive multiplayer online role-playing game (MMORPG). In virtually every such game, at least for the last several years, it has been possible to use real money from the real world (via a linked credit card or PayPal account) to buy virtual goods in the virtual world within which you are interacting via your avatar.
For example, in the MMORPG Black Desert Online, customers use a real-world credit card to purchase “Acoin,” which is the in-game virtual currency. For $30.00 (as of this writing), players can buy 3,000 Acoin, which is then credited to the player’s character’s purse or in-game account. Then, within the game, while playing, that player can use that 3,000 Acoin to buy weapons, clothing, a riding horse, or other things that enhance or accelerate the playing experience.
Other metaverse platforms allow players to actually custom create things to sell to other players within the digital environment.
Second Life is like this. And the digital tools for creating these items are spectacularly advanced.
Thus, it has become possible for to create exact digital replicas of real-world products, including logos, designs, and packaging that may, in the non-virtual realm, be a registered trademark.
This then raises the question of whether re-creation and sale of such replicated virtual goods in the metaverse constitutes trademark infringement. As of this writing, a lawsuit over exactly this question is unfolding between Hermès International, manufacturer of high-end purses, and a Second Life virtual merchant in the Southern District of New York.
This Article is not about trademark infringement, however.
Instead, it answers the question of whether you, a metaverse merchant, should register your virtual brand for your virtual product (or services) as a Federal trademark.
Again, the answer is, “Yes.”
Let’s talk about why you should—even if you’ve already registered a trademark for the real-world analog of your virtual product.
Why You Should Register a Trademark for Your Metaverse Virtual Goods
This Article presumes that you are familiar with the reasons why you should register a trademark for any product or service you are marketing in interstate commerce.
If your business name is unique, if you are selling something under a unique name or logo or with a unique slogan, you should register that name or logo or slogan as a trademark if you want your brand to continue to exist and you want your business to have value.
That said, why now file a new trademark registration application for your metaverse virtual goods?
It is because, increasingly, these virtual goods are being sold for real-world money in the metaverse, as described above.
One of the basic requirements for the registration of a US trademark is that the product or service with which the name, logo, or slogan is associated must be offered for sale in interstate commerce.
That is, to register a trademark in the US, you have to be selling something under that name or with that logo or slogan across state lines.
When MMORPGs and other metaverse platforms first emerged, they were not necessarily venues for individual commerce. They were games that you, the customer of the video game design company that made the game, paid to play. Likely, back then, you paid a monthly subscription to access the game and have your character/avatar run around in that virtual world, killing dragons and doing other things.
These days, metaverse platforms are much more commerce-focused than those old monthly subscription game models.
In fact, the in-game sale of improvements, advantages, or cosmetic updates to your avatar or its environment are the dominant business model for metaverse platforms.
Thus, the question of whether you are selling something in commerce is far more likely to be answered with “Yes” than “No” at this point in time. And this is only going to be more true moving forward.
If you are selling a virtual product on a metaverse platform under a unique name or with a unique logo (as opposed to the exact design analog at issue in the Hermès case), you are likely to meet the basic requirements for Federal trademark registration.
This is a brand. This is a product or service. It may, in fact, be generating significant income for you or your enterprise given the advancing popularity of metaverse platforms among “normal” people (non-gamers).
Given this and the ease with which your metaverse brand can be digitally replicated, you will need the protection of trademark registration to maintain your brand for the life of your enterprise. You will also need to ensure that you, yourself, aren’t sued for trademark infringement.
Registering your trademark will inoculate you against the possibility.
What If You Already Hold a Registered Trademark for a Non-Metaverse Analog of Your Product?
What if you have already registered a trademark for your actual, real-world product and you are now selling a digital analog of that product in the metaverse? Do you need a new trademark to protect the metaverse virtual product?
Yes, you do.
It may have been years since you filed the original real-world product trademark registration application. The metaverse may not have existed in any form at the time that you filed your original trademark registration.
That being the case, it is unlikely that your current trademark registration includes virtual metaverse products. (Possibly, registrations for online retail store services may be covered—but maybe not depending on your particular service description.)
Registering Your Trademark for Your Metaverse Virtual Goods: The Bottom Line
The bottom line is that your best bet for ensuring that your brand is protected in the metaverse is to consult with an experienced trademark attorney.
Detroit, Michigan Trademark Attorney John Hilla offers friendly, affordable assistance to Instagram and other social media influences for trademark registration purposes.
Located in Metro Detroit, we offer trademark assistance to clients throughout the US and offer virtual consultations and communications to make it easy for you.
To start a conversation with us, click the button below and follow the steps to schedule your initial trademark registration consultation.