Virtual Reality And Trademark/Patent Law

Virtual reality (VR) is an artificial virtual environment created through a software. This environment allows users to simulate the look, sound and feel of the real world.1 As VR becomes more widespread, new issues have begun to emerge in the field of Intellectual Property (IP) law. From trademark to patent disputes, this phenomenon has provided a new realm for legal questions to pop up. For example, in trademark law, VR issues are often occurring due to unauthorized use of trademarked services or goods. In particular, so far, there are still legal concerns regarding the virtual replication and insertion of brand names, logos, and trademarks in such unknown territory. In patent law, experts are facing a rise in the amount of litigation over patents that claim ownership of the underlying VR technology itself, making hard to define what is really claimed and, therefore, protected and infringed.

VR technology is evolving quickly: courts and trademark and patent offices are still behind in relating real world trademarks to their virtual world ones and in defining the differences between one VR technology's novelty from another. Here's an overview of some of the main cases that have already arisen and of the issues that may arise in this field.

Trademark issues

For a trademark to be worth protecting, the main requirements to be fulfilled are distinctiveness, lawfulness, truthfulness (non-deceptiveness), novelty and use in commerce. Although many of the same standards that protect trademarks in the real world apply to trademarks in virtual worlds, some grey areas do exist. A first kind of difficulty that the IP owner may face is whether the scope of its trademark covers only real goods or it can be extended to cover also intangible, virtual representations. In this regard, problems have emerged in the recent "Marvel v. NCSoft" case. Marvel Enterprises sued NCSoft (the maker of the "City of Heroes" online role-playing game) for providing tools to its users to design superhero costumes for their avatars that allegedly infringed trademarks and copyrights of its well-known superheroes. The court dismissed Marvel's trademark claims, stating that the players did not use the brands in commerce and the use of Marvel superhero names by players within the game was not of an infringing nature.

A second kind of issue that the IP owner may face is related to the evidence of damages suffered from the use of its IP in a VR platform. If sales of the tangible...