JURISDICTION REPORT: MEXICO
Trademarks in the metaverse
By Carla Santamaría of Becerril, Coca & Becerril
The metaverse is a virtual three-dimensional environment of human interaction which imitates real life. It can be experienced by people through sensory stimuli, in which they are graphically represented with a chosen virtual identity, namely an avatar, in a place that parallels our own physical world.
Importantly, each avatar within the metaverse represents and is manipulated, theoretically, by a real individual, as already happens on all platforms that allow us to interact in a non-face-to-face space using technology, such as websites, social networks and even virtual reality video games.
However, the main difference between virtual reality experiences and non-face-to-face interaction spaces, in which we have had more practical experience, is that in the metaverse, a whole, non-defined new universe occurs parallel to the physical world, in real time. In the metaverse people can experience third dimension day-to-day activities as if they are in an extension of the physical world.
In this sense, the metaverse is a non-defined fully immersive virtual reality that offers the experience of the physical world in an alternate digital realm. People can create, enjoy entertainment, work, invest, sell and offer goods and services, among other activities.
Protection in an alternate reality
Taking a look at intellectual property issues, in contrast with other virtual spaces in which all visual objects, scenarios, movements by people and activities are regulated and defined, in the metaverse the possibilities are endless.
As a consequence, users can interact in an unlimited virtual world, and consequently, also in a boundless virtual economy of trade and transactions, as if they had crossed the screens to exchange goods and services with real people, who will simultaneously be developing their goods and services to compete in this new virtual marketplace.
This means that this new space of consumption will be as regulated as any other. IP rights are protected within the metaverse as well as they are in the physical world, yet as might be expected, the metaverse will give rise to new vulnerabilities and challenges regarding trademarks and copyrights and their enforcement.
Hence, when it comes to trademarks that will be used in the metaverse, rights holders must adopt preventative measures and register and maintain their trademarks with an appropriate description.
“It will be crucial that rights holders properly protect the use of their trademarks in both spaces, in the real world and in the metaverse.”
Carla Santamaría
It will be crucial that rights holders properly protect the use of their trademarks in both spaces, in the real world and in the metaverse, particularly considering that there is a significant difference between offering and selling tangible and non-tangible products such as digital assets.
Trademark holders must also execute very clear and precise licenses and other commercial contracts with a scope that considers their business strategies in this new digital space.
Anonymous crimes
In case of infringement, rights holders will be facing a real challenge because of the nature of this multi-server-hosted environment. The metaverse ecosystem is not territorially delimited and in most cases, it is not hosted on a single server; consequently, it will be of utmost importance for rights holders’ attorneys to identify the applicable law and jurisdiction for the enforcement of the trademark rights, which is likely to be a difficult task.
In addition, people interact as virtual identities, so to identify and locate an infringer in the physical world to initiate the proper actions will require vigorous labour. Holders will be facing problems of anonymity and must conduct a special investigation which will be limited by the very nature of this multi-server-hosted environment.
On the other hand, there is no clarity about the responsibility of metaverse platforms—whether the owners are obligated to help identify and locate a person’s identity behind an avatar, whether they will state alternative non-judicial enforcement strategies as occurs on other websites hosted on a single server, or whether they will state in their terms and conditions important consequences to infringers and the scope of these consequences considering that the metaverse is not hosted just on one server.
Considering the above, it is important to point out that intellectual property legal provisions in Mexico include sufficient infringement grounds that comprise, even though not expressly, unauthorised use of trademarks in the metaverse; however, the challenge for enforcement in Mexico will arise if the affected IP right is properly registered and whether the infringer can be identified and located.
In this sense, as mentioned above, holders of Mexican trademark registration must reduce these risks by seeking expert legal advice to register their trademarks with the proper description, which is of crucial importance, and to draw up a strategy to prevent or discourage infringements to IP rights in the metaverse, to monitor the metaverse in order to detect possible infringements and to enforce their trademark rights in this new virtual space.
Carla Santamaría is an attorney-at-law at BC&B. She can be contacted at: csantamaria@bcb.com.mx
Main image: shutterstock.com / pixelparticle
