Brands in the Metaverse: The Concept of ‘Interdimensional Confusion’ Between the Physical and the Virtual Space under EU Trade Mark Law

Abstract

Brands have identified the metaverse, Web3 and NFTs as new means of engaging with their consumer base. Digital fashion, in particular, seems to have a bright future ahead. However, novel forms of virtual counterfeits are also on the rise. Brand owners are concerned that their existing trade mark registrations might not provide sufficient protection against infringements in the virtual space. The present article examines whether a likelihood of confusion within the meaning of Art. 9(2)(b) EUTMR can exist where a trade mark registered for physical goods is used almost identically in respect of their virtual counterparts.