DID you know that you can be sued when you are using someone’s work or innovation even if it was happening in a virtual world? Such a real case was happening recently in MetaBirkins case, where an artist called Rothschild was sued by the famous fashion brand, Hermès for using the trademark of their “Birkin” bag in Metaverse for almost six figures!

Metaverse’s emergence

In simple words, Metaverse is a virtual space in which people can interact with each other.

A famous example will be “Pokemon Go”, where you can catch your cute animals in the real location of the world within your digital devices. 

Notably, some may argue that it is truly unfair for him to be sued for trademark or patent infringement as the act was committed totally in virtual mode, not physically. 

However, there are some reasons why we still ought to respect someone’s work even if it was in Metaverse. 

Respecting the work of others

It is trite that one’s works should be respected and not to be infringed upon. This can be supported by the labour theory propounded by John Locke, where it was emphasised that God gave the earth to people in common where one’s works should be recognised as exclusive property and natural rights of that person. 

Hence, this theory built the foundation of the trademark and patent system, which it was a system that recognised the owner’s work where he or she can sue someone for using their works without permission, irrespective of whether infringement is happening virtually or physically.

Protection for society’s sake

Further, it was believed that the protection of someone’s work is to promote creativity and innovation in society.

This theory was best known as consequentialist theory, where Jeremy Bentham noted that a person should make decisions that provide the best result for the majority of people while inventions that do not benefit society should be rejected in general. 

Applying this theory to the Metaverse case, it can be said that someone’s work should be protected regardless of whether the work was virtual or physical. 

Meanwhile, one should not use someone’s work without permission as such action does not promote creativity in society. On the contrary, it does encourage the act of copying which bring a negative impact on society. 

From the perspective of the World Intellectual Property Organization 

According to the World Intellectual Property Organization, Metaverse can be classified as virtual goods protectable and registerable under class 9 (downloadable virtual goods), class 35 (retail store services featuring virtual goods), class 41 (entertainment services) and online non-downloadable virtual goods (class 42) of Nice Classification. 

In other words, when someone is using or copying someone’s work without permission, he or she can be sued for either trademark or patent infringement. 

This can be strengthened in section 3 of the Malaysia Trademark Act 2019, where a trademark was defined as “any” sign capable of being represented and as a result, conferring trademark protection under section 48 of the Act. 

All in all, it can be said that act of using someone’s work can be sued for trademark infringement when such an action takes place in the virtual world. Hence, the public should be aware of these consequences before using someone’s work to avoid patent or copyright infringement. – January 13, 2023.

* Ding Jiel Xin and Dr Nabeel Althabhawi read The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.