The "Medaverse Drinks" case R 2356/2022-2

In the case R 2356/2022-2 the Second Board of Appeal decided , on the 28th of February 2024, decided that the decision of the examiner  not to  accept for registration the trademark “METAVERSE DRINKS” in class 34. The description of goods in class 34 was as follows: Non-alcoholic beverages; Beverages containing vitamins; Isotonic beverages; Isotonic drinks powder; Energy drinks; Low-calorific non-alcoholic beverages; Athletes’ drinks; Nutrient-enriched beverages; Water; Mineral and aerated waters; Table water; Fruity-flavoured waters; Fruit drinks of concentrate or syrup, to which water and sugar have been added; Preparations for the manufacture of beverages; Essences for the production of beverages; Fruit drinks and juices; Vegetable juices; Beverage syrups; Fruit nectars; Protein-enriched sport drinks; Water-based functional beverages; Non- alcoholic cocktails; Carbohydrate beverages; Protein drinks.

The examiner refused the application based on the argument that the relevant public will perceive the mark simply as an indication devoid of any distinctive character, indicating that the goods are beverages which are offered or can be purchased in a virtual space. Therefore, the relevant public will not perceive any indication of commercial origin in that sign, but only information about the general nature of those goods.

The second board of appeal upheld the decision of the examiner and added that the fact that the office has registered trademarks that included the word “METAVERSE” in the past , the previous practice of the office does not bind it and the applicant should not expect that his application will succeed merely because the office allowed for registration similar marks in the past.

The approach of the second Board of Appeal towards METAVERSE is also important. The Board of Appeal with regards to metaverse said the following,

“The mark applied for is composed of an expression which is relevant in English and the nature of the mark must therefore be assessed from the point of view of English-speaking consumers in the European Union. The expert defined the word “Metaverse” as a virtual space. The word ‘DRINK’ denotes a beverage. According to the expert, the expression ‘Metaverse DRINK’ as a whole means ‘a drink in a virtual space’ in English. The applicant submits that ‘The expert examining the trade mark application nevertheless based its decision on a misunderstanding of the concept of Metaverse. ‘Metaverse’ is avirtual world in which people, as avatars, interact with each other in a three-dimensional space that mimics reality. (...) [there is] a separation between the virtual world of Metaverse and the real world. Metaverse is defined strictly as a category defined in the virtual world and should not be confused with all other online activities. For example, making purchases in an online shop of physical products that will be delivered to us in real form, or organising an online meeting, e.g. videoconferencing or lecture or checking mail, is not an entrance to the Metaverse world.” However, the House considers that the virtual world (Metaverse) is not a well-defined and distinct category in the virtual world. Nor is the borderline between the real world and the virtual world clear. The virtual world (Metaverse) is not just avatar, alternative reality and virtual products. More frequent examples suggest that Metaverse is another e-commerce viewer, i.e. online commerce. Companies use Metaverse to promote their goods and brands, which presented in virtual form, but the purchase will de facto concern real products that will then be sent home (like a ‘normal’ online order). Some shops already offer some virtual services, e.g. virtual shoe measurement. It can virtually measure the foot and virtually select customized shoes without leaving the home (e.g. https://ccc.eu/pl/esizeme; https://www.esize.me/; 24/02/2023). The above examples show that virtual spaces are constantly evolving and absorbing the new forms and opportunities offered by advances in IT and technology. In the light of the foregoing, the Chamber sees no error in the definition of the word ‘Metaverse’ as a virtual space.”

The decision in R 2356/2022-2 comes together with the decision in R 2357/2022-2 which also upheld the decision of the examiner to reject the Registration of the trademark “METAVERSE FOOD” on the same grounds.

One may say that the decisions in R 2356/2022-2 and R 2357/2022-2 have paved the way for cancellation actions against trademarks that includes the word “METAVERSE”