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April 29, 2021

Comment: IP in Virtual Reality (VR): Does the Virtual World Pose Real Life IP Issues?

Author: Aishwarya Pande

Virtual Reality (VR) places users in a simulated environment where users can engage themselves in  computer-generated 3-D experiences. VR replicates the look, sound and feel of the real world, using specialised equipment such as VR headsets or goggles. Primarily used in video games, the post-pandemic “new normal” world has seen a surge in the use and popularity of VR across various industries, including by museums, art galleries, etc. by allowing immersive virtual tours for their audience.

The increased popularity of VR technology has prompted deliberation over the intellectual property (IP) implications in the virtual world. Since VR seeks to immerse users in a life-like experience, the platform developers might choose to include IP-protected content in virtual worlds to make user-experience more realistic. Such inclusion is a cause of concern when it is done without authorisation from the IP owners.

The IP owners’ rights in their creations subsist in the physical as well as the virtual spaces equally. Any unauthorised use of IP in the virtual world should attract a liability for the VR platforms under the applicable IP statutes. However, one may also argue that the use of IP, in particular trademarks, within a video game may be considered as descriptive/nominative fair use. In other words, VR platforms may seek a defence on the ground that the use of the trademark is a direct reference to the owner of the mark and its goods, thereby causing no confusion in the minds of the users of the platform. A parallel can be drawn to the product placement marketing technique where references to specific brands are incorporated into movies or television shows. The only difference is that product placement is done with a specific promotional intent and in furtherance of a valid contract. Reportedly, for instance, recently Krafton Inc., owner of the popular game PUBG inked a deal with Warner Bros and Legendary Pictures, wherein the main characters from the movie Godzilla v. King Kong, will become playable characters in the game.[1] Had this been done in absence of a contract, Krafton would have faced severe legal consequences.

That being said, the Indian courts are yet to face this issue and it would be interesting to see whether the argument regarding nominative fair use would hold ground. Until then, it would be advisable for brand owners to be vigilant in both physical as well as virtual spaces and for the VR platform developers to be careful and avoid stepping on the “real” rights of the IP owners in the virtual world.

[1] https://www.sportskeeda.com/esports/news-pubg-mobile-releases-teaser-godzilla-vs-kong-collaboration (Last accessed on April 13, 2021 at 19.44)

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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