' Margaret Mantel | MTTLR

Trademark Infringement in Virtual Reality Spaces: When Your Virtual World Gets Too Real

Increased development of virtual reality (“VR”) technology brings a host of legal questions surrounding both the intellectual property (“IP”) of the actual technology as well as unlawful activity within the VR space itself. For example, VR creators could face lawsuits for right of publicity (using a famous person’s likeness without permission), defamation and false light invasion of privacy (making a person look bad by way of false information or false portrayal), intentional and/or negligent infliction of emotional distress (in cases of cyberbullying, for example), and copyright claims (where content under copyright, or content substantially similar to copyrighted content, is used in the VR). It has even been suggested that certain activities within VR could encourage more crime in the real world. This post focuses specifically on the trademark law implications that may arise in VR spaces, by providing a framework for understanding potential claims that may arise when an entity uses a mark in VR spaces without the registrant’s permission. What are the elements of a trademark infringement claim? For a mark to be eligible for trademark protection, it must be: (1) distinctive and (2) used in commerce. To establish infringement of a protected mark, a plaintiff must show: (a) it has a mark that is eligible for trademark protection, (b) it owns the mark, and (c) the defendant’s use of the mark causes a likelihood of confusion as to the origin or sponsorship of goods or services. See generally 15 U.S.C. §§ 1051 et seq. Depending on the facts of the case, a mark owner may have potential causes of action against two separate defendants: a user of...