Metaverse: The challenges of Intellectual Property legislation in Latin America

The metaverse proposal deals with a virtual reality where people can play, socialize, work and market through avatar, while sitting in their living room or in pajamas on their bed, and at the same time being dressed formally in their virtual office attending clients. It is a fantasy world where people will be able to live in a totally virtual mode. Well-known brands have already bought spaces, ZARA, the famous Spanish brand of clothing stores launched its first collection in the metaverse. Within this dimension, intellectual property plays a fundamental role and a challenge at the same time, where we live in a universe without borders, but trademarks rights are traditionally territorial. Are the current laws in our IP systems sufficient to effectively safeguard and protect rights holders in the Metaverse? The International Classification of Nice, which is the one that rules internationally delimitations of the products and services thar are protected in trademark rights, can be said that it does not expressly include what is related to this virtual world, however, trademark applications are already being filed in the United States Patent and Trademark Office (USPTO), requesting class 09 for downloadable virtual goods, software, class 35 for virtual goods trading services, NFTs (non- fungible tokens), entertainment services, and in class 42 financial services, including digital tokens. How to protect a brand and classify it correctly so that it has clear protection, or how to defend against piracy and counterfeiting in a virtual universe? The opinions are divided, some state that the laws will have to be modified to adjust to this new virtual reality; others state that new law should not necessarily be create, because intellectual property includes assets of intangible goods, that is, non-physical, so by their nature they are fully applicable to this new experience.

For example, people will use products and services that belong to registered trademarks, musical pieces, and video clips of a NFT, subject to the copyright which must be respected, and the owners can prevent unauthorize use. The Berne Convention for the Protection of Literary Artistic Works establishes that the Contracting Parties must grant exclusive rights to authors over their works, whatever their form of expression, so there it could be said that the virtual world is included. This same agreement has been complemented by other international agreements, such as the WIPO Copyright Treaty, which since 1996, adopted it to the digital environment, establishing that the storage of a protected work in a digital format is a reproduction that needs be authorized by the holder of that right, and NFTs are precisely a work contained in a digital format. 

Another important issue that arises is the difficulty that will exist for surveillance and monitoring of brands in the metaverse, the NFT market already contains many frauds, for example a customer who buys one of them and has invested a lot of money in its acquisition, later he discovers that it did not correspond to an authorized brand and observes how its value disappears. Undoubtedly, the metaverse poses interesting challenges of intellectual property and for our Latin American countries where the issue is incipient, it will be necessary to define whether there will be changes in our legislations, adjustments in international IP treaties, in the Nice trademark classification, a development of innovative proposals to monitor these rights, resolve the issue of territoriality in the trademark rights, while copyright is protected worldwide by international treaties to regulate the unauthorized use of artistic works and finally issues in innovation technologies protect by patents of invention; as well as gradually building jurisprudence related to this world called Metaverse. 

Mmonivation