Replicating Reality: is Trademark Use in The Metaverse Commercial or Expressive?

This Note will examine how trademark law should be applied to emerging digital spaces known as metaverses, which can function as both new-age video games and digital marketplaces. The Note will first explain the concept of the metaverse. Next, it will lay out the current landscape of trademark law as it is applied to marks in artistic works, including First Amendment protections for artistic relevance. Then, the Note will illustrate trademark infringement lawsuits dealing with fashion and digital media. Following that, this Note will detail how trademark law is applied to video games, especially in cases involving artistic expression. The analysis portion of the Note will further explain how trademark caselaw can be applied in the future to marks used in video games. Finally, the Note will distinguish how trademark law should be applied to protect brands in metaverses that function more like marketplaces, rather than traditional video games.