From 1878 to NFTs and the Metaverse – No Turning Back

With all of the media coverage surrounding the use of technology in the fight against online piracy and counterfeiting, we shouldn’t forget that trademark and copyright infringements were going on long before the invention of the world-wide-web.

After two years of COVID-disrupted meeting events, the International Trademark Association (INTA) is getting ready for its 2022 Annual General Meeting Live+, taking place in Washington, DC, on 30 April-4 May.

INTA is a global association of brand owners and professionals dedicated to supporting trademarks and other intellectual property (IP) to foster consumer trust, economic growth, and innovation through protecting the investment that companies put into building their brands.

The not-for-profit association was founded in 1878 by 17 merchants and manufacturers who saw a need for an organisation ‘to protect and promote the rights of trademark owners, to secure useful legislation, and to give aid and encouragement to all efforts for the advancement and observance of trademark rights’. Since then, the association has grown into a global community, supporting its members with guidance on best practice for protecting IP.

A strong theme of the association is to professionalise the industry by providing insights into trends in legal, regulatory and research aspects of brand protection. But, no sooner had INTA and other trade bodies, such as the ACG (Anti-Counterfeiting Group), worked to steer effective policies to counter the rise in counterfeiting activities on the internet, we have two more web-enabled developments that fraudsters will be seeking to exploit: NFTs and the metaverse.

Although sometimes disputed, the first known non-fungible token (NFT) was created during a live presentation for the Seven on Seven conference at the New Museum in New York City in May 2014, which paired seven leading artists with seven technologists and challenged them to make something new together. The new thing that Kevin McCoy and Anil Dash came up with was Quantum, consisting of a video clip made by McCoy’s wife, Jennifer. McCoy registered the video on the Namecoin blockchain and sold it to Dash for $4, during the live presentation at the Seven on Seven conference.

Here then, we had a purely virtual asset, not a digital version of a physical one, which had an established provenance and indisputable owner. Or did we? In 2021, Sotheby’s sold Kevin McCoy’s Quantum for $1.47 million at auction only to have a lawsuit filed against McCoy and the auction house by a holding company whose owner claims to own Quantum.

The second development came on the day in October 2021 when Facebook changed its corporate name to Meta. The metaverse as a concept for a network of 3D virtual worlds had been circulating for several years.

But with many of the technology tools such as artificial intelligence and augmented reality headsets reaching maturity, here was a company literally staking its future on a world created from virtual reality.

The question for INTA, and the brands and professionals they represent, is how will the laws and regulations that govern the physical and online worlds of piracy and counterfeiting be adapted to pr otect brands which were created virtually – without reference to anything physical?

In his article on the internet developments platform, CircleID, Frederick Felman 1 comments that as NFTs become more commonly used beyond early adopters and speculators, there will be an impact on brands and customers and, ultimately, upon those responsible for defending brands.

Along with abuse and scams specific to NFTs, he points out, there will be issues common to existing physical and digital venues and platforms. Inauthentic use of protected intellectual property to confuse consumers will find a new home in gaming and metaverses. Fake and stolen digital goods based on branded NFTs will be the new battleground for brand protection professionals, especially as NFTs gain widespread appeal.

But might there be opportunities for 180° strategies from brand owners to create NFTs to protect their own brand, goods, and other virtual properties? And how will the use of protected branded NFTs be tracked and managed? Whatever tools emerge to patrol the NFT exchanges for fakes and virtual property abuses, organisations will need to form new security and brand protection capabilities to protect themselves.

Which is why, more than a century and a quarter after its formation, INTA should be watchful of the two critical forks in the road – NFTs and the metaverse – that will challenge the intentions of the association’s founders to ‘protect and promote’.

1 - Protecting Your Brand in the New World of NFTs (