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.
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, branded goods are not affected by the virtual goods, how can the IP owner prove damages? An example of technology that may cause problems in this regard is the Pokémon Go app. This game uses real pictures from the world to show the location of "Pokéstops" and "Gyms". For instance, Pokémon Go may use the logo of a company because the "Pokéstop" or "Gym" is actually located at that company store. What if that store does not want to be associated with the Pokémon brand? Can it prevent the use of its logo and brand? The creator of Pokémon Go will likely argue that the game attracts customers to the store and therefore the game is actually beneficial to said company. Conclusively, no harm to the company's brand would occur. While this may in fact be true, everything depends on the way the abovementioned company wants to be perceived by its clientele. Brand owners may start working with VR creators/developers to provide licenses for virtual goods that use their IP and allow players to virtually incorporate those trademarked products/services into their VR experiences.
Filing patents for VR is no different from any other technology. There are some differences, such as user interfaces and motion-tracking technologies, but the base elements needed for registration are the same: the invention must be new, involving an inventive step and suitable for industrial application. As a matter of fact, patents within the VR world go back to 1993, when a patent for a VR helmet was filed for the first time by Sega for the Sega Genesis Console. Virtual reality patents protect VR, an artificial simulation of the real world that has been designed by computer programs. One of the major trends recently captured by patents is the transformation from merely entertainment-based VR patents towards more useful, inclusive, and practical applications such as surgical simulators, telepresence surgery, complex medical database visualization, and rehabilitation data. Many companies have been filing patents to protect the technology behind such hardware developments. In this field, the highest number of VR patents have been filed in the United States, followed by China and Europe. Nevertheless, it is worth remembering that: (i) patent registration may require a long time to be obtained (with the risk that in the meanwhile the technology implemented becomes obsolete); (ii) software ex se are not patentable; and (iii) that patent offices and courts are still not prepared to face the issues generated by these kind of devices.
So far, due to the relatively young age of VR technology, case law is minimal and not material. People familiar with technology law may remember that in 2014 Oculus (and, by extension, its owner, Facebook) were sued by game publisher ZeniMax Media for alleged theft of IP, misappropriation of trade secrets and violations of non-disclosure agreements relating to the Oculus Rift headset (even if the result was that Oculus/Facebook have been ordered to pay Zenimax US$500 million but mainly for its NDA violation; now, it seems that the case has been apparently settled but the details are unknown).
There are no specific laws on VR yet, but existing IP laws still apply. As the laws have traditionally not been designed to be applied in an environment where reality and computer-generated simulation meet, one should therefore pay attention to the unique legal issues that may arise in the context of VR and try to develop good practices aimed at balancing the different interests involved in the matter.
1 .VR differs from augmented reality (AR) since AR supplements the real world. The user sees the real world on a device, such as a mobile phone, but with the addition of computer generated images which are overlaid onto various real objects. "Augmentations" can be sound, video, graphics or data. AR achieves this by adding computer vision and object recognition to data about the real environment surrounding the user.↩
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