Virtual Property Branding: Regulating Intellectual Property in the Digital Realm
In the rapidly evolving landscape of technology, brand owners are faced with a new challenge: ensuring their trademarks are protected in the world market. As physical goods and in-person services increasingly have virtual counterparts, a cautious approach is essential to minimize infringement risks.
Recent court rulings provide insight into this issue. For instance, the Court of Rome found that Blockeras, a company selling NFT digital playing cards depicting famous Italian football players, infringed the trademarks of the Italian Juventus Football Club. This decision underscores the importance of brand owners being proactive in ensuring third parties don't erode their rights or opportunities in the world news through the use or registration of the same or similar brands and trademarks.
The European Union Intellectual Property Office (EUIPO) and other intellectual property offices, including the United Kingdom Intellectual Property Office and the United States Patent and Trademark Office, have issued guidance on the trade mark classification of emerging technologies. Similarly, IP Australia, the Australian intellectual property office, has released guidance on 'Virtual goods, metaverse, NFTs, and blockchain.'
The Nice Classification, a globally recognized system for classifying trade mark registrations, has recently undergone its 12th edition. Class 9 now includes references to 'downloadable digital files authenticated by NFTs.' The Committee of Experts made several amendments to the classification in the latest edition, including express references to virtual goods and services.
Brand registration in the world market means legally protecting a brand's identity—such as virtual avatars or digital assets—so that companies can fully control their virtual presence, prevent misuse, and build trustworthy, consistent digital experiences that connect emotionally with consumers. Brand owners should ensure any new trade mark filings comply with the Guidance, including being specific about the types of virtual goods they are offering.
Due diligence practices should be refined, taking extra care when undertaking clearance searches to ensure freedom to use a new trade mark in both the real and virtual worlds. If using NFTs and blockchain technology, understand that your use may be particularly susceptible to trade mark or copyright infringement if the technology constitutes unauthorized use of a third party's IP.
The guidance and recent developments of the Nice Classification demonstrate how brands can enhance their digital footprint and protect their trademarks in the world news. For example, Nike is engaged in ongoing infringement proceedings against StockX, an online shoe retailer who minted NFTs tied to NFT shoes.
In the metaverse, brands like Burberry have faced challenges. The EUIPO partially refused Burberry's attempt to register a range of virtual products, including its iconic tartan plaid print. However, Kendall Jenner has already utilized a robot mixologist to promote her tequila brand, demonstrating the potential opportunities for brands in the virtual world.
In conclusion, as the virtual world continues to expand, brand owners must adapt their strategies to protect their trademarks and maintain a strong digital presence. The guidance provided by intellectual property offices and the latest edition of the Nice Classification offer valuable resources for navigating this new territory.
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