Nike is serving as a leader when it comes to trademark filings related to metaverse, having filed a handful of trademark applications last fall for its famous word mark and Swoosh logo, among others, for use on “downloadable virtual goods;” “retail store services featuring virtual goods;” and “entertainment services, namely, providing on-line, non-downloadable virtual footwear, clothing, headwear, eyewear, [and] bags,” among other things, “for use in virtual environments.” Part of its influence on the filing front – as indicated by the sheer uptick in applications filed by other brands in the immediate wake of its October 2021 filings – is almost certainly derived from the large scale lack of filings and registrations for virtual goods for companies to reference in their own quests to navigate trademark practices in the metaverse.
While Nike is undoubtedly an early – and influential – mover in terms of the recent emphasis on non-fungible tokens (“NFTs”) and the virtual world more broadly, it is not the first brand to seek out trademark registrations for its marks in the metaverse. As such, here is a dive in a couple of notable early examples, and a few more recent ones, which could provide some insight into what we can expect from the U.S. Patent and Trademark Office (“USPTO”) and other trademark bodies in this realm.
In much the same way as Second Life has provided (some) insight into what trademark infringement litigation looks like in the virtual world, it also spurred the registration of two trademarks worth considering. Back in 2008, the USPTO issued a registration to Alyssa LaRoche, the woman behind the Aimee Weber avatar on the Second Life platform and a design studio aimed at helping companies operate on the virtual platform that Linden Lab launched in 2003.
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