When Avatars Infringe IP: A Guide

avatars infringe IP

In the United States, intellectual property infringement litigation is expensive and time-consuming. Litigation is the endmost enforcement tool for an intellectual property (IP) owner. It holds the promise of obtaining injunctive relief and money damages but it is still a form of all-out commercial war.

With the now-universal use of online product sales platforms such as Amazon, Alibaba and Facebook Marketplace, it has become exponentially easier to infringe intellectual property. Infringing sales posts can pop up quickly and from anywhere. In addition, the internet makes it quite easy for an infringer to conceal its identity. IP infringement is also facilitated by the very nature of social media platforms – ease of use and posting speed – such that there has been an explosion of counterfeit product offerings on social media platforms like Facebook and Instagram.

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All this online infringement activity has greatly (and quickly) magnified the concerns of IP owners as to what to do about it. Traditional IP litigation is not a solution – too cumbersome and expensive. In an attempt to appease IP owners, online sales and social media platforms have developed and adopted “terms of use” policies that include “private” IP registration and enforcement tools (“private” meaning an IP owner may attain some form of infringement relief without having to go to court).

These non-judicial platform-specific alternatives to address IP infringement provide an IP owner with the ability to notify the platform of the infringing activity. The platform will then remove the allegedly infringing content, and the party that posted that content is generally given an opportunity to submit a response in its defense, which may be enough for the platform to reinstate the disputed content.

In some cases, prior registration of the IP owner’s IP may facilitate the initial policing and takedown effort (such as via Amazon’s Brand Registry program). Other examples of these types of non-judicial IP protection programs include Amazon’s Neutral Patent Evaluation program, eBay’s Verified Rights Owner Program and Alibaba’s Intellectual Property Protection Platform. In addition to content removal, other possible remedies include account suspension or termination.

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An IP owner cannot get money damages or an injunction using these platform IP enforcement tools, but if a platform shuts down an allegedly infringing post, listing or account, that may provide sort of the same effect as an injunction. The acts of infringement on that platform stop, at least until the infringer pops up doing the same thing as another entity or using a new account.

While clearly imperfect, the remedies afforded by these IP protection programs are quick, inexpensive and effective (at least on a micro-level). In addition, the use of these tools does not necessarily require an attorney to do the IP enforcement work – IP owners can try to do it themselves.

All these private IP enforcement tools relate to what some call the Web2.0 – our current internet that encompasses social networking, user-generated content and e-commerce. What about IP rights enforcement at the next level – in “the metaverse?”

As we move into Web3.0, many believe that the metaverse – a digital world where users (using avatars) can socialize, play and work – will be the next big thing. Digital goods and services can be acquired for use in the metaverse, like apparel for your avatar, digital real estate, and tickets to digital-only venues for entertainment, conferences and educational experiences. If you can imagine it (and brand it), it will be available. And then, of course, there will be counterfeiters – trying to sell digital goods and services that are not genuine.

The Web3.0 runs on blockchain technology, allowing it to function in decentralized manner. In that form, there may be no single host provider that, upon request, can remove allegedly infringing content on behalf of an IP owner. Will metaverse platforms implement IP protection programs like the Web2.0 programs discussed above? If they do, will they work? We don’t know! This is the newest and next Wild West of the internet. Stay tuned.

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