From Hermès v. Rothschild to Vegap v. Mango: an EU analysis on fair metaverse uses of digitized IP content

Abstract

The growing importance of the metaverse in recent years has led to its evolution into a global hub for showcasing creative digital content by brands and online users alike. Such content often results from the digitization of real-world trade mark or copyright subject matter, which is then minted into a Non-Fungible Token (NFT) or else, in metaverse-compatible format. Two court rulings from the past few years, Hermès v. Rothschild in the US and Vegap v. Mango in Spain, deal with complex intellectual property (IP) considerations in light of the digitization and use of IP content in the metaverse by artists. Taking these two cases as a point of reference, this paper examines the notion of ‘use’ through the lens of European trade mark and copyright law. First, it explores instances whether the metaverse ‘uses’ of digitized IP content in question would satisfy the legal tests for infringement under the EU law regime. Second, it investigates whether certain metaverse ‘uses’ may be considered fair, or permissible, on the given facts and to what extent a balance can be achieved between the rights of IP proprietors and freedom of artistic expression.