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03.15.22

Virtual trademarks? METAmorphosis in the food and beverage industry

By Janet M. Garetto

Last year, "Facebook" renamed itself "Meta" and announced the goal and creation of the "Metaverse." The Metaverse is a world focused on ownership of digital assets where people can eat, drink, and undertake real world activities—virtually. Despite the fact that the Metaverse has not yet arrived, businesses are preparing to take advantage of the many opportunities that come with it—one being brand protection for virtual goods and services.

A growing list of food and beverage companies are extending their trademark portfolios into the virtual world. They are beginning to explore ways to protect their brands in virtual settings, which will likely ensure rights are recognized in the virtual marketplace. Large, well-known brands such as Panera, Panda Express, Wingstop, and Chuck E. Cheese, have recently filed trademark applications for activities unique to the Metaverse. Items covered by trademark filings in the virtual world range from "virtual restaurants" and "virtual food and drink" to "online retail services featuring virtual goods" and "downloadable software for providing access to virtual restaurants, foods, and drinks."

A key feature of the virtual world involves non-fungible tokens (NFTs), which are digital tokens that exist on a blockchain and signify one's ownership of a particular asset. To protect these rights, food and beverage companies are filing trademark applications covering items such as "downloadable multimedia files containing artwork, text, audio and video files[,] and non-fungible tokens." To protect their ability to offer loyalty programs virtually, food and beverage companies have filed trademark applications covering "downloadable loyalty cards" that may be redeemed for the purchase of food and drink menu items in the virtual world. Food and beverage brand owners should begin preparing assessments as to whether they wish to enter the virtual world and file trademark applications to cover future desired activities. Steps taken now may help protect "brick and mortar" world rights in their brands and limit trademark infringers in the Metaverse. Although the Metaverse is digital and virtual, it will have a significant impact on trademark rights in the real world.

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Janet M. Garetto

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