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The intellectual evolution of the human spirit, unstoppable and free in essence, also lies in the digital realm, and the proof of this is the arrival of the Metaverse. The word and concept of the Metaverse was coined and conceived by the American science fiction writer Neal Town Stephenson through his novel of the cyberpunk subgenre entitled “SNOW CRASH”, published in June 1992.  Its author, Neal Stephenson, conceived the virtual world as the successor to the Internet and introduced Avatars as a relevant aspect within the plot of his novel.

On October 2021, Mark Zuckerberg officially announced the change of name of the company Facebook to Meta, thus giving entry to the Metaverse and generating a wave of concern for both creators and holders of intangible assets in the digital-virtual scene.

But, in this Metaverse, is there a double good for humanity? Or is it a distraction? Why should the Intellectual Property Experts pay attention to the Metaverse? In my opinion, it represents a new way of giving value to creativity, to commerce through the Blockchain, and therefore means new forms of Intellectual Property Rights infringements, both online and offline.

The Metaverse brings with it the opportunity to experience “sense” closeness in the distance through a set of devices connected to the Internet, which incorporates the most important organ of the human being: the brain. Entering the fantasy is an almost real experience that is entertaining and novel. To date, the intangible assets that are part of this scenario are video games, applications, and other entertainment activities, where NFTs, since the Pandemic, have played a relevant role.

Within the video games, there are the Avatars, of importance for the young generation, who “design” their own avatar or character, and it is here where we see the participation of well-known trademarks leading the digital transformation, such as Balenciaga, Burberry, Dior, Gucci, Nike with Nikeland in Roblox with their already almost famous virtual shoes, Hermès with their bags, and companies such as Inditex (Zara), offering their collections through their own digital products to “dress” and identify the Avatar within the Metaverse. These digital products are anchored and are marketed through cryptocurrencies, within the Blockchain, that is, within what has already been called Web 3.0.

At the same time, we have digital art works, all protected through Derechos de Autor or Copyright, known as NFTs, also anchored to a cryptocurrency.

But can trademark infringement or plagiarism occur in the NFTs scene? Of course, it can, and even involve online and offline actions. A real-life example of this is the Case of Hermès International and Hermès of Paris, Inc. v. Mason Rothschild, where Hermès International et. al. on January 14, 2022, sued at the United States District Court Southern District of New York, for the creation, marketing, sale, trading and making available of more than 100 NFTs, under the name of MetaBirkins, inspired by the brand and the iconic Birkin Hermès`s bag. It is curious to see how creativity is also reflected in the infringement, since the Defendant transfers intellectual property rights to virtual reality, creating the same illusion of real-life Birkin products as a digital product in NFTs, and in turn combining the word “meta”, considered to date as “generic”, together with the Birkin trademark.

Also, Nike, Inc. v StockX LLC, which on February 3, 2022, sued at the United States District Court Southern District of New York, for unauthorized use and infringement of the Nike trademark in connection with NFT (collectibles) on the StockX LLC platform and on the Instagram Social Network.

Other IP-related court Cases involving NFTs are Miramax LLC vs Quentin Tarantino, filed on November 16, 2021 at the United States District Court Central District of California, where Miramax alleges that Tarantino’s NFTs -based on seven (7) “exclusive scenes” from the 1994 motion picture Pulp Fiction- are a breach of contract and violate its copyright and trademark rights associated with Pulp Fiction’s film;  and Lil Yachty vs. Opulous, DITTO LTD. and Lee James Parsons, filed on January 27, 2022 at United States District Court Central District of California, for trademark infringement for allegedly using the rapper’s name and likeness without permission to raise over $6.5 million in venture capital funds.

Another example , in relation to NFTs, is the plagiarism by visual identity of a work by Liam   ̈Sharpy ̈ Sharp, who is a Comic book artist, who, on December 18, 2021, completely closed his gallery in DevianArt, after noticing an unauthorized reproduction of one of his NFTs.  Plagiarizing an NFT is extremely simple today, since it is only consisting of making a screen print on the computer or shooting a photograph through the cell phone, so awareness of intellectual property is increasingly necessary, as well as the establishment of quick methods, simple and effective, which allow the owner to make their own Claim, and exercise the defense of their Intellectual Property Rights.

But what about Domain Names? Domain names, as we already know, behave as distinctive signs and are part of the Domain Name System (DNS), subject in case of controversy to a local Lawsuit or to an out-of-court procedure, established through the UDRP, or a Variation of it, for a ccTLD or the Policy established by the corresponding ccTLD, as a result of the almost static experience of Web 2.0., which translates into a Claim or recovery based on more than reliable legal procedures.  To date, domain names are not linked to the Blockchain, and their regime is totally different from a cryptocurrency address, e.g. gucci.eth. However, Domain Names seem to continue to be the object of attention of Cybersquatters.   Examples of this are cases already administered by the Dispute Resolution Providers, involving the registration of well-known trademarks added to the words “metaverse”, “meta” and even of the  “nft” initials: Disney Enterprises, Inc. v. chenghao chen, Forum Claim No. 1973581 (<disneymetaverse.com>); Tencent Holdings Limited v. chenghao chen, WIPO Case No. D2021-3605 (<tencentmetaverse.com>); Government Employees Insurance Company v. Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf / Edward Jarman, MONSOON BLOCKCHAIN, WIPO Case No. D2021-4023 (<geicometaverse.com>); Gameloft S.E. v. Privacy service provided by Withheld for Privacy ehf / Edward Jarman, MONSOON BLOCKCHAIN, WIPO Case No. D2021-4285 (<gameloftmetaverse.com> and <gameloftnft.com>); Calvin Klein Inc. and Calvin Klein Trademark Trust v. Park Jang Hyuk, WIPO Case No. D2021-3759 (<metacalvinklein.com> and <metaversecalvinklein.com>); Tommy Bahama Group, Inc. v. David K Austreng, IT Labs, Inc., WIPO Case No. D2021-4393 (<metatommybahama.com>); Tencent Technology (Shenzhen) Co., Ltd. v. Wu Zhidong (wu zhi dong), WIPO Case No. DCN2021-0048 (<tencentmeta.cn>).

To date, it can be said that intangible assets, due to its potential infinite value require effective and continuous Monitoring by their owners and/or legal IP representatives, through the corresponding specialized software, both for trademarks and for images subject of Derechos de Autor and / or Copyright, as in the case of the NFTs. Therefore, how are you Monitoring your Trademark on the Internet now?