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Introduction

The term Habeas Data echoes the centuries-old principle of Habeas Corpus, transposing the protection of individual freedoms into the immaterial sphere of personal data. In the age of digital medicine and global circulation of medical information, Habeas Data serves as a true guardian of personal health data, ensuring each individual’s right to access, control, and correct the information relating to their most intimate sphere: their health.

The origins of Habeas Data

Historical context and legal philosophy

Habeas Data emerged in the 20th century in Latin America as a constitutional remedy, allowing individuals to protect themselves against the abusive collection, use, or storage of their data. It enshrines the principle that personal data, like individual liberty, must be protected against arbitrary interference.

Recognition in latin american constitutional systems

Countries such as Brazil, Colombia, and Argentina have incorporated Habeas Data into their constitutions, granting citizens the right to access, rectify, or delete personal data held by public or private entities. This mechanism has served as a model for broader debates on digital sovereignty.

Definition of Habeas Data and health data

What Habeas Data covers

Habeas Data guarantees every individual the right to consult personal data held by third parties and to request its rectification or deletion if inaccurate or unlawfully processed. It is a procedural right that enshrines the principle of informational self-determination.

Clarifying the notion of health data

Under Article 4(15) of the GDPR, health data is defined as personal data related to the physical or mental health of a natural person, including the provision of health care services, revealing information about their health status. Its specificity lies in its highly sensitive nature, as it can impact dignity, employment, insurance, or individual freedom.

Why Habeas Data is essential for health data

Sensitivity and risks of misuse

Health data is classified as a special category of data. Unauthorized disclosure can have serious consequences, such as denial of insurance, stigmatization, workplace discrimination, or reputational harm.

Safeguarding dignity, privacy, and autonomy

Habeas Data functions as a constitutional safeguard that keeps health data under the individual’s exclusive control. It strengthens privacy, personal autonomy, and informational integrity, especially at a time when electronic medical records and digital health platforms are becoming widespread.

Distinction from European mechanisms such as the GDPR

Points of convergence

Both Habeas Data and the General Data Protection Regulation (GDPR) pursue similar objectives: transparency, purpose limitation, and rights of access, rectification, and erasure. Both are based on the principle of giving individuals control over their personal data.

Key differences in scope and application

The essential difference lies in their legal nature. The GDPR is a regulation applicable across the European Union, imposing obligations on data controllers. Habeas Data, on the other hand, is a constitutional right directly enforceable before the courts, providing citizens with an effective remedy.

Strategic and legal challenges

Why Habeas Data was established

This mechanism was designed to limit the growing power of institutions and corporations handling sensitive data, particularly in the healthcare sector. It ensures that individuals retain control over information that can directly affect their privacy and decision-making.

Anticipating the challenges of health data protection

Protecting health data now intersects with cross-border data flows, artificial intelligence, and digital platforms. An effective strategy requires:

• strengthening compliance programs in healthcare institutions,
• implementing clear patient consent practices,
• monitoring international transfers of sensitive data.

Conclusion

Habeas Data acts as a constitutional shield for health data, complementing and sometimes surpassing European mechanisms such as the GDPR. Its procedural dimension strengthens the effective protection of individuals in an increasingly digital society.

Dreyfus Law firm assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus Law firm is partnered with a global network of lawyers specializing in intellectual property.

Nathalie Dreyfus with the assistance of the entire Dreyfus team.

FAQ

1. What is Habeas Data in simple terms?
It is a right allowing any person to access their personal data and request its correction or deletion.

2. Why is Habeas Data particularly important for health data?
Because such data is extremely sensitive, and its misuse may cause discrimination, financial loss, or harm to dignity.

3. What is the difference between Habeas Data and the GDPR?
The GDPR is a European regulation imposing obligations, while Habeas Data is a constitutional right directly enforceable in court.

4. Does the GDPR also protect health data?
Yes, it classifies health data as “sensitive data,” requiring explicit consent and enhanced safeguards.

5. Which countries recognize Habeas Data?
Notably Brazil, Argentina, and Colombia, where it is enshrined in the Constitution.

What is game reskinning?

Game reskinning involves copying the structure, logic, gameplay, algorithms, and mechanics of a game, while simply changing its appearance (graphic design, characters, sound interface) to give the illusion of a new game.

This practice, common in China, aims to reuse a successful gameplay without bearing the development cost or creative risk. As a result, it leads to “disguised” copies that seriously harm the legitimate rights holders.

Why is reskinning problematic?

• Consumer confusion: Players often fail to distinguish the original game from the copy.
• Harm to investment: Clones unfairly exploit the research and development (R&D) work of others.
• Revenue loss: Clones divert downloads and user engagement.
• Stifling innovation: By reducing the value of original creations, reskinning hinders technological progress.

3. The response of Chinese courts

3.1 A structuring case law

In the case of Rise of Kingdoms vs Commander (2024), the Guangdong High People’s Court condemned the company Jiujiu to more than 10 million yuan (USD 1.6 million) for copying the game mechanics of a competitor, while also copying the graphics from Age of Empires.
The court found that this combination—copying the “bones” (mechanics) and the “skin” (visuals) from two games—constituted parasitic behavior under Article 2 of the Chinese anti-unfair competition law (AUCL).
Three criteria were established:

1. Originality and competitive importance of the copied elements;
2. Extent of the reproduction compared to industry practices;
3. Bad faith or violation of honest business practices.

3.2 An evolving legal framework

Chinese courts have evolved: initially protective via copyright law (for software or audiovisual works), they now increasingly apply unfair competition law to sanction the abusive use of gameplay.
The Supreme Court also published a guideline in December 2024 on the judicial protection of technological innovation, recommending the broad application of AUCL clauses to fight “free riding” (Effortless gain) in innovative sectors.

What can developers and rights holders do?

• Document the creation process: design documents, code versions, aesthetic choices.
• Register protectable elements: trademarks, designs, interfaces.
• Implement proactive monitoring: detect clones on app stores.
• Build a strong evidence case: visual comparisons, confusion tests, economic data.
• Combine legal grounds: copyright, unfair competition, trade secrets.

Conclusion

Chinese courts mark a turning point in the fight against game reskinning, relying not only on copyright law but also on an evolving interpretation of unfair competition law. This strategy, now supported by hefty financial sanctions, is a deterrent to parasitic behavior in the gaming industry.
Dreyfus Law firm assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus Law firm is partnered with a global network of lawyers specializing in intellectual property.

Nathalie Dreyfus with the assistance of the entire Dreyfus team.

FAQ

1. What is game reskinning?

   It is the practice of copying a game’s gameplay while only changing its appearance.

2. Why do Chinese courts impose high damages?

   To compensate for competitive loss and penalize unfair practices.

3. Are game mechanics protected by copyright?

   No, they are considered as ideas, but can be protected through unfair competition law.

4. Does this case law apply to foreign games?

   Yes, as long as they are exploited in the Chinese market.

5. What evidence is required?

   Screenshots, video comparisons, functional analyses, data on audience or revenue loss.

Background and Origins

On June 9, 2023, France enacted Law No. 2023-451, a pioneering piece of legislation aimed at regulating the commercial practices of influencers and protecting social media users. This law represents a significant step in regulating commercial influence and combating the abuses by influencers on various digital platforms.

Definitions and Objectives

In recent years, the sector of commercial influence has seen exponential growth but also significant deviations, ranging from the promotion of dangerous products to deceptive commercial practices. The Directorate General for Competition, Consumer Affairs, and Fraud Prevention (DGCCRF) conducted several investigations revealing increasing deceptive commercial practices. Simultaneously, the Professional Advertising Regulatory Authority (ARPP) had already established good practice rules and created an Observatory for Responsible Influence in 2019. However, these measures proved insufficient, prompting legislators to intervene more rigorously to regulate commercial influence and combat its abuses.

This new legislation is noteworthy for its role in regulating concepts increasingly integrated into our daily lives. Article 1 of the law precisely defines the term “influencer” as follows: “Individuals or legal entities who, for a fee, use their notoriety with their audience to communicate electronically to the public content aimed at directly or indirectly promoting goods, services, or a cause engage in the activity of commercial influence”. Additionally, the activity of influencer agents is now regulated by Article 7, which defines them as intermediaries representing influencers or facilitating their relations with advertisers while ensuring the compliance of their activities with the regulations in force.

In France, where the number of influencers is estimated at around 150,000, the behaviours of some have highlighted the need for stringent regulation to protect consumers, especially the younger one, who are highly susceptible to these new forms of advertising. With this context, the law mandates that platforms hosting influencer content identify and remove illegal materials while ensuring the transparency of commercial posts.

Influencers must now establish written contracts with advertisers, explicitly specifying the terms of their collaboration to ensure clarity and protection. Moreover, the law requires increased transparency: any publication must clearly indicate whether it is an “advertisement” or a “commercial collaboration” to avoid any confusion among consumers, in accordance with Article L. 121-3 of the Consumer Code.

Additionally, this legislation continues the efforts of the October 29, 2020, law by enhancing the protection of all sector actors, including minor influencers. Dedicated measures aim to secure the activity of child influencers on all digital platforms such as Instagram, Snapchat, TikTok, and extend the provisions initially provided for minor YouTubers by the October 19, 2020, law. Thus, these young influencers now benefit from the protections of the Labor Code. Their parents or legal guardians are required to sign contracts with advertisers, and a portion of the income generated is reserved for their future in the form of a nest egg.

Violations of these rules can result in severe penalties, including imprisonment of up to two years and fines of up to 300,000 euros. The law also establishes joint liability between the influencer, the advertiser, and their agent, ensuring that victims of abusive commercial practices can obtain effective redress.

Assessment After Several Months of Implementation of French Law No. 2023-451

Since its implementation, French Law No. 2023-451 has resulted in numerous sanctions against influencers for deceptive commercial practices. In response, online platforms have enhanced their monitoring policies to align with the new legislative standards.

Nevertheless, this law has encountered criticism from many content creators, who view it as an overly stringent government intervention. They contend that the swift enactment of this legislation may stifle creativity and innovation within the influencer marketing industry.

In response to these criticisms, a code of conduct for influencers has been developed. Although useful, this guide does not fully meet the legal requirements of Law No. 2023-451 and does not have the same legal standing as the legislation itself. However, it plays an important educational role by raising awareness among influencers about transparency and consumer protection issues. It also provides detailed explanations and practical tools, such as contract templates and compliance checklists.

In addition, the European Commission has expressed reservations about this law, suggesting that it may conflict with the Digital Services Act (DSA) and that it did not follow the notification procedure required by the Commission. As a result, the DDADUE law was promulgated on 22 April 2024 with the aim of revising the basic articles of the influencer legislation. This reform aims to align French legislation with European standards, including the E-Commerce Directive and the DSA, in order to ensure consistent regulation within the European Union.

Conclusion

Law no. 2023-451 represents a major step forward in the regulation of the commercial influence sector in France. While criticisms remain, the need to protect consumers and ensure greater transparency in the practices of influencers justifies these stringent measures. Future adjustments, in particular through the DDADUE law, will better harmonise French regulation with European standards and ensure uniform consumer protection across the European Union. Despite the criticism, the need to protect consumers and promote transparency in influencers’ advertising practices justifies the adoption of strict measures. Nevertheless, this regulation raises questions about its compliance with European directives, particularly with regard to freedom of expression and digital innovation.

The legal debate surrounding deceptive trade marks has taken on new significance with a preliminary question recently referred to the Court of Justice of the European Union (CJEU). This question focuses on the precise definition of a deceptive trade mark, particularly when the misleading information pertains not to the characteristics of the products or services but to the company itself.

Background of the Case

The case involves the French company Fauré Le Page, initially known for selling weapons and ammunition, as well as leather accessories. Founded in 1716 in Paris, the original Maison Fauré Le Page ceased operations in 1992, after which all its assets were transferred to its sole shareholder, the Saillard company. In 1989, Saillard filed an application for the French trade mark “Fauré Le Page,” covering products such as firearms and their parts, as well as leather and imitation leather goods.

In 2009, this trade mark was sold to a new entity, Fauré Le Page Paris, established that same year. This company subsequently filed, in 2011, two applications for French trade marks, both containing the words “Fauré Le Page Paris 1717” and covering various leather goods. However, these trade marks were contested by the company Goyard ST-Honoré, which sought their cancellation on the grounds that they were misleading, based on the old Trade Mark Directive (Directive 2008/95/EC, replaced by Directive (EU) 2015/2436).

Legal Framework

European trade mark legislation, particularly Article 4(1)(g) of the Trade Mark Directive (Directive (EU) 2015/2436), stipulates that a trade mark may be refused registration or annulled if it is “of such a nature as to deceive the public, particularly as to the nature, quality, or geographical origin of the goods or services.” Additionally, Article 20(b) of the same directive provides for the revocation of a trade mark if, after its registration, it becomes deceptive due to the use made of it by its proprietor or with the proprietor’s consent.

The main issue is whether a trade mark can be considered deceptive when it conveys false information not about the characteristics of the products or services, but about the attributes of the company itself, such as its founding date or age.

The Decision of the Court of Appeal and the question asked by the French Supreme Court (Cour de Cassation) to the CJUE

The Court of Appeal of Paris ruled that the “Paris 1717” trade marks was invalid. It found that the mention “Paris 1717” referred to the location and date of establishment of the company, which could mislead the public into believing in the continuity of the company’s operations since that date and the supposed transfer of know-how from the original Maison Fauré Le Page to Fauré Le Page Paris. This judgment was based on the fact that the original company had ceased its activities in 1992, while the new entity was founded in 2009.

However, Fauré Le Page Paris appealed this decision to the Cour de Cassation, arguing that Article 4(1)(g) of the Trademark Directive required deception regarding the characteristics of the products and services, not the qualities of the trade mark owner, such as the company’s founding year.

The Preliminary Question to the CJEU

Faced with this interpretation of the law, the Cour de Cassation decided to refer a preliminary question to the CJEU. It asks whether a trade mark can be considered deceptive when the false information concerns the age, reliability, and know-how of the manufacturer, rather than the characteristics of the goods themselves. Specifically, it poses two questions to the CJEU:

1. Should Article 4(1)(g) of Trademark Directive be interpreted to mean that a reference to a fictitious date in a trade mark, conveying false information about the age, reliability, and know-how of the manufacturer, is sufficient to establish the existence of actual deception or a serious risk of deceiving consumers?

2. If the answer to the first question is negative, should that article be interpreted to mean that a trade mark can be considered deceptive if there is a likelihood that consumers will believe that the trade mark owner has been producing these goods for centuries, thereby conferring a prestigious image on them, when this is not the case?

The outcome of this case could have significant implications for companies using historical references in their branding strategy. If the CJEU concludes that such a practice is deceptive, it could broaden the grounds for annulment of trade marks to include false information about the company itself, not just the products or services.

There is already precedent in European case law. For example, in the W. F. Gözze Frottierweberei and Gözze case (C-689/15), the CJEU ruled that for a trade mark to be deceptive, it must, by itself, create a risk of deceiving consumers, regardless of the use made of it after registration.

Furthermore, if the preliminary question had been posed under Article 20(b) of TMD3, which focuses on deceptive use of the trade mark after registration, the answer might be different. This article does not limit deception to the characteristics of the goods or services but could include misleading information about the company.

In any case, if the geographical origin of goods and services can be considered an important characteristic under Article 4(1)(g) of the Trademark Directive, why not the founding date of the company? Both are intangible properties, but they can significantly impact the perceived quality of goods and services and consumers’ purchasing decisions.

Future Implications

The decision the CJEU makes in this case will be crucial. It could redefine the legal criteria surrounding the notion of a deceptive trade mark, with potential repercussions for branding strategies, particularly in the luxury sector, where history and heritage play a key role. Companies may need to reassess their branding strategies to ensure that any historical or prestigious references are not perceived as misleading by consumers.

It is essential for companies to take a proactive approach to trade mark management, ensuring that the historical or prestigious information they use does not mislead consumers. The CJEU’s decision could also have an impact beyond Europe, influencing trade mark practices globally.

This case highlights the increasing importance of protecting consumers against misleading commercial practices and underscores the need for companies to maintain full transparency in their brand communication.

In a context where environmental awareness is continuously growing, the demand for eco-friendly products is intensifying. This trend has led to a proliferation of brand names suggesting eco-friendliness. However, it has become difficult for the public to distinguish between brands genuinely committed to environmental efforts and those merely using “green” vocabulary to deceive consumers.

Indeed, in its impact assessment report accompanying the proposal for a Directive amending Directives 2005/29/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and better information, the European Commission’s Regulatory Scrutiny Board (RSB) noted that over 53.3% of environmental claims analyzed within the EU were found to be vague, misleading, or unfounded, while 42% lacked any tangible evidence. This is why the European Union has taken firm measures to regulate these practices.

The Rise of “Green” Trademarks

More and more consumers are prioritizing eco-friendly products. This growth in demand has pushed brands to reposition themselves, emphasizing their environmental commitments.

Brands have responded to this demand by choosing brand names using environmentally oriented vocabulary and incorporating green colors into their logos. Expressions like “green,” “sustainable,” “eco-friendly,” “natural,” or “biodegradable” are frequently used. This marketing approach, aiming to evoke a positive image and meet growing consumer expectations, is also found in logos incorporating leaves, trees, the planet, or green or blue colors to reinforce this image.

In 2021, a study carried out by the EUIPO through the European Observatory on Infringements of Intellectual Property Rights examined the increasing frequency with which goods and services specification of EUTMs reflect issues related to environmental protection and sustainability. An algorithm was developed to search among the more than 65 million terms contained in EU trademark (EUTM) applications filed over the years to identify those containing at least one “green” term. More than two million EU trademark applications filed with the EUIPO since it began operation in 1996 were considered.

The study shows that the number of “green” EUTM filings has increased significantly since the office began its activities in 1996, both in absolute terms and as a proportion of all EUTM filings.

Green EUTM Filing, 1996-2020 (EUIPO)                   Green EUTM filings as a share of all EUTM filings, 1996-2020 (EUIPO)     

However, trademark registration applications that specifically include direct environmental claims can be refused. These refusals are usually based on the descriptive nature of the mark, although there may also be another reason related to the misleading nature of the trademark.

Therefore, the use of unjustified green trademark will lead to accusations of greenwashing.

Indeed, with the explosion of green marketing, greenwashing practices have also multiplied, attracting the attention of regulators, legislators, and potential litigants such as competitors, customers, or consumer protection organizations.

Greenwashing

Greenwashing is the use of ecological terms or symbols without them corresponding to actual practices. The goal is to give a falsely eco-friendly image to attract consumers. Brands that engage in greenwashing seek to capitalize on the growing market for eco-friendly products without genuinely investing in environmentally friendly practices.

In this context, the European legislator has intervened again with Directive 2024/825 of February 28, 2024, amending Directives 2005/29/EC and 2011/83/EU on unfair commercial practices. This directive is in line with the European Green Deal and the European Circular Economy Action Plan. It aims to “enable consumers to make better-informed business decisions to promote sustainable consumption, eliminate practices that harm the sustainable economy, and divert consumers from sustainable consumption choices.” It creates an action plan for the green transition, targeting greenwashing with three principles. Firstly, brands must be able to prove all their environmental claims. Secondly, the claims must be validated by an independent body. Finally, consumers must receive clear and reliable information. Member States have a 24-month period to transpose the directive into their national laws from March 6, 2024.

France had already introduced provisions to specifically sanction greenwashing statements from January 1, 2023, with Decrees No. 2022-538 and 2022-539 of April 13, 2022, prohibiting advertisements stating that a product or service is carbon-neutral unless a report explaining how carbon neutrality is achieved is published and updated annually.

Greenwashing statements could already be sanctioned on the ground of unfair competition and misleading commercial practices since Law No. 2021-1104 of August 22, 2021, on Climate and Resilience. The new law gives an environmental dimension to the definition of misleading commercial practices.

Conclusion

The proliferation of “green” trademarks names is a natural response to the growing demand for environmentally friendly products. However, greenwashing practices threaten trust in eco-friendly initiatives. To avoid pitfalls and create credible green trademarks, it is essential to follow a transparent strategy, comply with environmental standards, and involve competent experts. The protection of eco-friendly brands and the fight against misleading practices also require increased consumer vigilance and support from lawyers and intellectual property attorneys specializing in this field.

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September 27, 2023, Paris Court of Appeal Case No. 21/12348

On September 27, 2023, the Paris Court of Appeal rendered a pivotal decision concerning copyright law in the realm of interior design and applied arts. At the heart of the case was the “Lyre” lamp, a unique creation by sculptor Philippe Cuny, which ignited a legal battle against architect Carlo Rampazzi for copyright infringement.

The “Lyre” Lamp’s case

In this case, Carlo Rampazzi, an interior designer, commissioned Philippe Cuny, a sculptor specializing in mirrors and lighting fixtures, to create several models of a “Lyre” lamp. Architect Carlo Rampazzi then published photos of the “Lyre” lamp on social media without obtaining prior authorization from the creator and without mentioning his name. Consequently, the creator, Philippe Cuny, sued the architect before the Paris Judicial Court for copyright infringement.

In May 2021, the Paris Judicial Court ruled in favor of Philippe Cuny, the creator of the lamp, condemning Carlo Rampazzi for copyright infringement.

Carlo Rampazzi appealed this decision to the Paris Court of Appeal. On September 27, 2023, the Paris Court of Appeal confirmed the lower court’s decision. The Court ruled on the originality of the lamp and then on the infringement, thereby rejecting the accessory theory raised by architect Carlo Rampazzi. The judges of the Court of Appeal reiterate that it is possible to combine design rights and copyright, provided that originality is demonstrated. It also recalls the consistent position of jurisprudence on the accessory theory according to which, firstly, the work must be presented in the background, not constituting a main subject, and secondly, the exploitation of the work must be unintentional.

The “Lyre” Lamp is protected by copyright

The Court first examined the question of whether the “Lyre” lamp was protected by copyright. As Philippe Cuny’s authorship was not disputed, the Court directly addressed the copyright protection of the “Lyre” lamp model.

The Court recalled that all applied art works must be original to be protected by copyright. Originality, distinct from novelty, is the manifestation of the author’s creative abilities, reflecting the imprint of their personality, to make ‘free and creative choices’.

Copyright protection will only be denied for a design if its form is exclusively dictated by the function of the product.

On the criterion of originality, the Court of Appeal concluded that the “Lyre” lamp met the originality criteria due to its distinctive features such as its asymmetrical harp shape, airy and sensual appearance, and its ability to evoke different images and emotions. Moreover, the Court noted that Mr. Cuny successfully reconciled the technical constraints of a lamp with a very personal representation, which evidenced the originality of his work.

The exclusion of the Accessory Theory

To avoid a conviction for infringement on the basis of unauthorized use (breach of the author’s reproduction right) and without mentioning the author’s name (breach of the right to paternity), architect Carlo Rampazzi invoked the accessory theory. This limitation to copyright is based on the European Directive of May 22, 2001, on the harmonization of certain aspects of copyright and related rights in the information society.

Constant jurisprudence considers that the so-called fortuitous inclusion exception applies when two cumulative conditions are met: the work must be presented in the background, not being the main subject, and the exploitation of the work must be unintentional.

In examining the contentious photographs, the Court of Appeal concluded that the “Lyre” lamp was deliberately highlighted and not accidental, thus excluding the application of this exception. In one of the photographs, the lamp was placed in the foreground with a setting that emphasized the object, while in another, although located in the background, it was still very visible in all its features and significant in the composition of the scene. The Court of Appeal specifies that in this case, it matters little that the lamps were modified and that they were ‘neither the object nor the goal of the communication’.

Therefore, the accessory theory could not validly be invoked for this case

Conclusion: A Precedent for Protection and Respect in Design

The Paris Court of Appeal’s ruling not only vindicated Philippe Cuny’s rights but also set a robust precedent for respecting intellectual property in the design and architectural sectors.

Web 3.0 and the metaverse represent a new era in the evolution of the Internet, marking a transition from a static, information-centered web to a dynamic and immersive space. These technologies not only push the limits of online interaction but also redefine how we perceive and engage with the digital world. The metaverse, in particular, offers a parallel universe where individuals can interact, work, play, and experience environments in virtual settings. This technological advancement comes with new ways of conceptualizing ownership, identity, and community in the digital world.

At the heart of the metaverse economy are NFTs (Non-Fungible Tokens) and cryptocurrencies, redefining ownership and value in the digital space. NFTs, in particular, have become synonymous with digital ownership, enabling the purchase, sale, and collection of artworks, multimedia content, and even virtual land. Meanwhile, cryptocurrencies offer a secure and decentralized transaction method, essential in a world where physical borders are increasingly irrelevant. Together, these technologies facilitate a dynamic and constantly evolving digital market, propelling the metaverse beyond a mere leisure space into a viable commercial platform.

Emerging Intellectual Property Challenges in the Metaverse

Navigating Copyright Protection In the Metaverse

In the metaverse, copyright issues take on a new dimension. The ease with which digital content can be copied and modified raises concerns about copyright protection.

Existing copyright and image rights legislation applies in the metaverse. This means that when a company creates an NFT incorporating music, for example, for an event in the metaverse, the company must obtain the copyright for this music. Creating NFTs without the necessary rights could result in liabilities for the creator and potentially infringe the rights of those who market them.

Although there is not yet an apparent practice for determining responsibilities in the metaverse, it is likely that there will be in the near future. Those who own NFTs that violate third-party intellectual property rights could lose this ownership (or even the NFT itself could lose value, as the market will know that such an intangible asset has inherent liability).

Additionally, creators and businesses operating in the metaverse must navigate a complex legal framework. They must ensure that their creations do not infringe on others’ copyrights and, at the same time, protect their own works against counterfeiting and unauthorized use. This task is made even more difficult as copyright laws vary considerably from country to country.

Trademark Challenges in the Virtual Spaces

The reality created by the metaverse has opened new business opportunities for companies by breaking down territorial barriers, increasing brand reach to previously inaccessible consumers, and consequently expanding sales and services in both the physical and virtual worlds. While bringing a new market with new connections and possibilities, the metaverse also creates new legal situations that must be carefully evaluated.

When registering a trademark, it is necessary to indicate the category of products or services for which the trademark registration is requested. Trademark law only protects signs as they guarantee the origin of a product or service, not the signs themselves. Therefore, the principle of specificity is fundamental.

However, the metaverse is a virtual environment where physical goods, such as clothing or bags, do not circulate. This raises the question of whether the owner of a trademark registered for products in the category of bags, for example, could exercise their rights in the metaverse environment even though they have not registered their trademark for products covering the class of NFTs, perceived as lines of code.

Some believe that the classification of products and services is insufficient to guarantee trademark protection in the metaverse. In reality, case law (notably the metabirkin case) suggests that a consumer purchasing a clothing item in the form of an NFT (lines of code), which closely resembles a well-known earlier brand in the textile market, will logically assume that the physical world brand has expanded into the digital world.

The mere possibility of characterizing a risk of confusion in the consumer’s mind between NFTs and earlier trademarks demonstrates that an unregistered brand for virtual products could still be protected in the metaverse. However, this argument should be nuanced, as in this hypothesis, the brand in question was a renowned brand.

Instead of risking your brand’s protection by relying solely on reputation, a more conservative legal strategy is recommended, involving obtaining trademark registrations for the digital environment.

Protecting Design And Technological Innovations

The rapid evolution of immersive reality technologies, blockchain, artificial intelligence, interconnectivity, among others, are key to the metaverse bringing about the social revolution it has promised in the coming years. Those close to technological developments will be better positioned to benefit from these advances and identify opportunities in this new world.

In addition to technological innovation, the metaverse allows for numerous advances in aesthetic innovation. A product with an innovative design has relevant appeal and economic value, and it can reach other dimensions in this immersive experience, where forms and colors can be explored without the limitations of the physical world.

Technological innovations in the metaverse can thus be protected by patents, a legal instrument that guarantees an exclusive right over new technology. The main objective is to support technological evolution, as with market exclusivity, the patent holder can recover the investment applied in research and development and reinvest the amount in new developments, thus generating a self-sustaining cycle of innovation. Patents are also a source of technological information, and their content can serve as a basis for other innovations to develop. Consequently, patents can stimulate the development of new technologies that will improve the metaverse in the coming years.

On the other hand, aesthetic innovations can be protected by industrial design registrations. Monetizing a product with a remarkable design in the metaverse or even the layout of applications will be strengthened with adequate legal protection, capable of preventing inappropriate use by third parties.

Contractual Considerations and Licensing In the Metaverse

Given that the metaverse is an entirely decentralized platform without a single owner or dominant operator, how can we ensure that licenses are fair and transparent? The internet has brought challenges in this regard, particularly concerning the legitimacy of contracting, the limits of protection, the place of operation, and the determination of responsibilities.

Fiscal Implications and Taxation

From a fiscal perspective, assessing the nature of transactions in the metaverse will determine the applicable treatment, jurisdiction, applicable rates, and possibly compensatory planning with other transactions.

However, is a transaction in the metaverse a sale or a license? Is it a national or international transaction? Does it fall under consumer law or B2B law?

Regarding Existing Contracts

In the case of existing ongoing license contracts, will it be necessary to execute contractual modifications to accommodate the metaverse? Will clauses such as licensed objects, time limits, territoriality, ownership limits, collaboration in creation, and forms of remuneration need to be revised in the new contractual environment of the metaverse?

These are questions that must be studied on a case-by-case basis, without legislative or regulatory definitions of the metaverse. This makes the licensing of Intellectual Property assets a major challenge and an excellent opportunity for the virtual world.

While the metaverse offers opportunities for creative developers, businesses, and individuals, it can also present a complicated legal effort for commercial management in this new environment. In the field of intellectual property asset licensing, the metaverse is a dynamic environment that leads us to question whether contractual practices are in line with rights already guaranteed to holders. Obtaining effective legal advice will help individuals and businesses navigate these nuances.

Challenges of the Metaverse for Intellectual Property Lawyers and Industrial Property Advisors (CPI)

The metaverse redefines how we interact with technology, each other, and the digital world in general. This rapidly evolving virtual space poses new challenges for intellectual property law specialists and industrial property advisory firms, who play a crucial role in navigating the legal complexities of this environment.

Role of Intellectual Property Law Firms and Industrial Property Advisory Firms in Navigating the Metaverse Legally

Experts in industrial property rights and intellectual property law are on the front line to help companies navigate the complex legal framework of the metaverse. With the emergence of new forms of digital property, such as NFTs, and the popularization of augmented and virtual reality, issues of copyright, trademarks, patents, and image rights are becoming increasingly pressing.

These experts must not only understand the technical aspects of these new technologies but also anticipate legislative developments and the legal implications they entail. They are obligated to provide strategic advice to protect their clients’ creations and innovations in this new domain, while respecting the rights of others.

Intellectual property specialists help their clients understand the importance of registering and protecting their intellectual property rights from the outset of their venture into the metaverse. This includes registering trademarks, protecting copyright on digital works, managing designs & models, and handling patents for innovative technologies.

For example, in trademark law, it is necessary to ensure that the client has properly registered their trademark for virtual products to better defend themselves in a counterfeiting dispute or to prevent a competitor from registering the trademark for virtual products before them. In copyright law, the intellectual property law expert must ensure that the client has intellectual property rights for digital use, particularly to avoid an infringement action from the right holder.

Proactive monitoring of IP violations and the implementation of protective measures are also crucial. This may involve monitoring metaverse platforms to detect and act against unauthorized or counterfeit uses of IP assets.

Advice for Companies Wishing to Invest in the Metaverse

For companies eager to dive into the metaverse, collaboration with specialized intellectual property firms is essential. These firms can provide advice on how to effectively protect their digital assets, manage risks related to intellectual property, and navigate constantly evolving regulations.

Companies must be aware that traditional business practices may not apply as is in the metaverse. Therefore, brand and marketing strategies must be adapted to align with the unique characteristics of this virtual space.

Securing Innovation and Ownership: Navigating the Future of Intellectual Property in the Metaverse

In conclusion, as the metaverse continues to expand its virtual horizons, it brings forth unprecedented challenges and opportunities in the realm of intellectual property. It necessitates a proactive, informed, and adaptive approach from creators, businesses, and legal professionals.

As they navigate this intricate new world, understanding and safeguarding intellectual property rights is paramount to fostering innovation, maintaining competitive advantage, and ensuring a fair, thriving digital economy.

By staying ahead of evolving legal frameworks, embracing new protective strategies, and fostering collaborative relationships with specialized IP firms, stakeholders can not only mitigate risks but also harness the full potential of the metaverse. As we step into this new era, the intersection of technology, law, and creativity will become increasingly complex yet undeniably exciting, shaping the future of digital interaction and ownership.

For expert guidance and strategic solutions tailored to your unique needs in the Metaverse and Intellectual Property matters, contact the Dreyfus law firm team today. Let us help you navigate this new digital frontier with confidence and security.