Metaverse is the terminology used for the "virtual world", combining "virtual reality", "augmented reality", "artificial intelligence" and "Internet of Things". Already commonly used in electronic games, Metaverse is the space created on technological platforms, with shared collective spaces and environments, created, in most cases, from real replicas, so that its user has a realistic immersive experience in 3D, also interacting with other users, all represented in this virtual world by avatars (personal image created and customized by the user).

With the arrival of 5G, the Metaverse, which evolves from the internet and has already moved more than USD 120 billion in 2022, sounds like a potential reality, capable of penetrating countless sectors and creating so many others, on an exponential scale. It is not by accident that companies around the world have already turned to the digital market and the creation of assets such as non-fungible tokens (NFTs). But not only NFTs, business opportunities that are born in the virtual world and reverberate in the physical world are already arising the real estate market, where contracts, called smart (via computer codes), are signed via blockchain, as well as the education segment, retail, telemedicine, among others.

Despite its safeless aspect, all cryptocurrency transactions are validated by blockchain, a technology that allows users to track the sending and receiving of information over the internet, ensuring transaction security. Besides, in this scenario, it is worth mentioning that NFTs work as a certificate of ownership.

Therefore, this unimaginably changing and evolving parallel world, without any geographical barrier, where new forms of relationship between individuals and companies will be experimented, will certainly rise great regulatory and legal challenges, with a special focus on intellectual property, which deals with the creations of the human mind and its inherent property rights of an exclusive and territorial nature.

In this context, we highlight some IP rights that must already be observed by the explorers of these “new seas” amid the current technological revolution:

  • Patent:

Patent is a temporary property title granted to inventors/ owners, in relation to a creation, which has novelty, inventive activity and industrial application. The patent guarantees its owner the exclusivity of exploiting the invention in the territory in which its protection was requested, for a period of 20 years, in the case of a patent, or 15 years for utility models, counted from application date of the application.

Given the scope of the Metaverse, it can be easily inferred that, in order to be implemented, the Metaverse requires a complex technological infrastructure, where new hardware is necessary, not only those aimed at technology users, such as headphones, virtual reality glasses, cell phones and tactile gloves, but also those used to operate and create virtual environments, called corporate hardware, such as cameras, projection systems, tracking, sensors, among others. Within this context, related to hardware components is the safest path.

Although software has great relevance in this market, it is not patentable. Hence, it is important to keep in mind that processes related to inventions that are implemented by computer programs deserve attention and can earn patent protection.

  • Software:

In Brazil, the software is protected by the Software Law (Nº 9609/98) and does not require registration at the Brazilian Patent Trademark Office (BPTO), although this procedure is strongly recommended to prove the date of priority and ownership. It is also worth mentioning that the right in relation to the software is born with its creation and is valid for 50 years from January 1 of the year following its publication or, in its absence, of its creation, being recognized in other countries.

  • Trademark:

Being a visually perceptible distinctive sign, the trademark represented by a name or a figure (2D or 3D) or both serves to identify a product or service and must be registered at the BPTO, according to Brazilian Law.

In Brazil, as well as in several other jurisdictions, the first person to request the registration holds the trademark rights. The registration of a trademark guarantees the holder the exclusively rights of use in the national territory within a specific market segment for a period of 10 years, renewable for equal periods. The types of products and services are divided into classes. If a trademark covers goods or services in more than one class, it must be registered individually in each of the corresponding classes. In this context, digital items must also be protected in the appropriate classes for the new market. In other words, if a footwear trademark is registered at the BPTO in classes 25 (clothing articles) and 35 (retail service), once its “NFT” (i.e., the item used and certified in the virtual world) has been created, this title holder must require the registration of the same mark in the classes aimed at this new segment.

Industrial property offices around the world are already thinking about this matter and how to standardize the international classification of these new items. According to WIPO (World Intellectual Property Organization), giant companies in the clothing segment are already requesting registration of their marks for class 9 (computer programs), class 35 (retail services), class 42 (NFTS) and class 36 (digital tokens).

It is important to keep in mind that the unauthorized use of third -party trademark on digital platform constitutes a trademark infringement. Although a company does not use its marks in the metaverse or register its marks in this new segment, the unauthorized use of this brand can be seen as a trademark violation, especially for well-known marks, whose protections provided by the Paris Convention, transcend territorial barriers. This scenario may not be so favorable for unknown marks, but still unauthorized use can be argued through consumer likelihood of confusion, or unfair competition, or parasitic exploitation, depending on each case. The fact is that it is still early to say how this new reality will be interpreted by the courts.

Given this perspective, and taking into account the several business possibilities regarding trademarks and their "interactions" in the metaverse, it is recommendable for any IP holder has a defined action plan, so that together with a specialized professional, establishes a secure insertion into the digital market segment, without failing to oversee the use of your trademark on technological platforms, from the point of view of safeguarding possible infringement from third parties, avoiding, therefore, the decline of the trademark commercial value.

Although there is legal basis on the subject, there are still some grey areas. One should follow attentively and reflectively the challenges that society will face in the coming decades, especially on aspects of the Metaverse related to jurisdiction, data privacy, territoriality of rights x lack of borders, ownership of artificial intelligence technological developments, among many other issues that cannot even been foreseen at this present moment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.