No monopoly on the Metaverse

3rd April 2023

The EUIPO rejects two EUTM applications for METAVERSE FOOD and METAVERSE DRINK.

Background

On 11 February 2022, Oshee Polska Sp. z. o. o. applied to register two EUTM applications – one for METAVERSE FOOD covering pharmaceutical preparations, supplements, foodstuffs and drinks in classes 5, 29, 30 and 32, and the other for METAVERSE DRINK covering drinks in class 32.

The EUIPO refused both applications on the grounds of non-distinctiveness and, more particularly, on the basis that the goods applied for would be perceived as being made available to consumers in a virtual world (i.e. in the Metaverse).

Oshee’s Arguments

Oshee argued on appeal that:

• the marks were distinctive because the goods applied for were physical and real goods, not virtual ones;
• the concept of the “Metaverse” should be defined narrowly to a specific type of virtual world which does not extend to other online activities, such as, purchasing products from online retail stores; and
• the EUIPO had accepted other applications for Metaverse ENERGY and

• and should therefore be consistent in its practice.

Decision

The EUIPO’s Board of Appeal dismissed Oshee’s appeals in finding that:

• the signs meant “food in a virtual space” and “drink in a virtual space”;
• the virtual world is not just avatars, alternative reality and virtual products. The distinction between the Metaverse and other forms of online activity is blurred;
• the Metaverse is another e-commerce platform within which companies promote their goods and brands, which later translates to increased sales of their goods in the real world;
• some companies are starting to offer Metaverse online stores where the goods offered and purchased in virtual form relate to physical goods being sent to the consumer’s real world address; and
• The fact that other METAVERSE marks are on the register is not a valid reason for overturning the decision. It is the case that descriptive and non-distinctive marks are registered by mistake on occasion.

Comment

These decisions demonstrate that, as far as the EUIPO is concerned, the term “Metaverse” has become synonymous with the virtual world. It remains to be seen whether other brand owners challenge this position but, for now, it would seem (quite rightly) that nobody can monopolise the Metaverse as a trade mark.