Trade mark law and the interplay between the virtual and real world.

Abstract

While Virtual Reality (“VR”) is becoming an interesting new market for virtual goods, it is very closely related to the real-world market as it is also used by companies existing in the real world to market their real-world products. Due to this interplay between the virtual world and the real market, the consumer risks being faced with similar/identical trade marks that exist in both worlds. To understand if the trade mark law encompasses the migration of trade marks from one world to the other, this thesis analyses the current trade mark law when applied to cases when there is an interplay between the real world and VR. Firstly, the thesis analyses if the trade mark functions and the rationale underlying such functions can justify an expansion of the trade mark law in VR. Secondly, it underlies how the distinctiveness, infringement, reputation, and genuine use of trade marks can play a role where there is an interplay of the trade mark in real-world and VR.

On one hand, the use of the trade mark law in the case of an interplay is justifiable as the consumer will need to rely on some information when purchasing virtual goods. On the other hand, the trade mark law as it is does not provide adequate protection in cases of the interplay between real-world and VR. This inadequate protection comes firstly as a result of the fact that virtual goods and their unique nature have not yet reached the Nice Classification, “obligating” proprietors of virtual trade marks to use already existing classes for protection in the VR, a solution which creates further obstacles when it comes to proving similarity of goods, distinctiveness and genuine use.

Keywords: virtual reality, trade mark, reputation, genuine use, virtual trade marks.