INTA publishes major reports on the metaverse and NFTs

White papers seek to provide definitions and guidance on trademarks in ‘largely uncharted waters’ | Trademark Association positions itself as key to providing guidance and advocacy for practitioners.

The International Trademark Association ( INTA) has published two extensive white papers examining the metaverse and non-fungible tokens (NFTs), exclusively from a trademark perspective.

Thought to be among the first reports of their kind, the white papers—released on Friday, April 14 and totalling 145 pages—were led by INTA’s Emerging Issues Committee and produced in collaboration with multiple INTA committees and sub-committees.

Trademarks in the Metaverse: A Report from INTA; and Non-Fungible Tokens: A Report from INTA, explore the challenges presented by new digital ‘ecosystems’ throughout the lifecycle of trademarks, and make specific recommendations for how best INTA might guide the global IP community forward in what it describes as ‘largely uncharted waters’.

A particular focus of these recommendations is on ‘decentralised virtual worlds’ that have yet to interact with each other. Without centralised control and governance, scams and infringements can proliferate, according to INTA.

“Our work exploring trademarks in the metaverse and NFTs is an example of how our association seeks to get ahead of emerging technologies and support our global membership in navigating this exciting yet complex new frontier for brands and consumers alike,” said Emerging Issues Committee chair Catherine Mateu (of French law firm Armengaud Guerlain) in a statement.

A ‘3D experience’

In the Metaverse report, INTA compares the emergence of the metaverse with the rise of the internet in the 1990s and early 2000s.

“The internet is now evolving into a three-dimensional (3D) experience in which people will be immersed into a whole different reality, where there will be no ‘borders’ because platforms will be interoperable,” begins the report.

“This will certainly bring positive developments, but it will also bring about challenges to the legal landscape including new avenues for nefarious activity of all kinds.”

Horizon-scanning

Kate Swain, partner and co-head of IP at Gowling, sat on the Metaverse white paper’s sub-committee.

“There's so much noise around the metaverse, but at the moment, what we're doing is very much horizon-scanning, and that really is what this white paper is about,” she told WIPR.

“What this white paper is trying to do is look into the future and understand, from some of the issues we are already encountering in relation to online platforms, where could this go? Are we fit for purpose essentially, as things currently stand?”

In terms of online IP use, Swain highlighted the significance of the current “decentralised model”.

“By decentralised, I mean that there are lots of different platforms,” she explained. “And there are lots of different jurisdictions and there are lots of different countries.

“Whereas when you're talking about the metaverse, you're talking about something that at the heart of it has interoperability, so it is a single background. It's important to recognise that we don't have that yet. The metaverse doesn't actually exist yet.”

NFT ‘whack-a-mole’

In the report on NFTs, INTA begins: “The massive, sudden growth of NFTs has left the legal community—the intellectual property (IP) community in particular—looking for answers.

“This white paper explores NFTs, how they fit into the current legal landscape, and legal interpretations of them, and provides information for brand owners and lawyers.”

It goes on to highlight the overlap with the metaverse: “Adding to the difficulty of the quick expansion of NFTs is the overarching ethos of the metaverse, which emphasises decentralisation…Brand owners are left with a “whack a mole” problem of addressing infringements as they pop up on myriad platforms often without the ability to trace an actual person.”

Both papers call for harmonisation of the classification of trademarks in the metaverse and of NFTs.

They also explore and recommend further advocacy to address the issues trademark owners face, including: