The rapidly growing Augmented Reality market boasted revenues of approximately $181 million in 2011, and analysts expect this figure to rise to $5,156 million by 2016. Augmented reality, frequently referred to as “AR”, is a virtual-reality system that enhances the real world with virtual data by superimposing computer-generated text, images, and sounds over real surroundings. AR is most commonly seen during sporting events such as the first-down lines displayed on television during football games, but this technology is quickly evolving. Google Glass and like products use an optical head-mounted display to produce graphics right in front of a user’s eyes rather than on the screen of a smartphone or a television. Businesses offering goods and services have realized the new advertising space available in AR, in which they can market their products and messages alongside the other virtual data displayed to an AR user.
Advertisements could be used to trigger AR advertisements, which would then be superimposed above them in so that the viewers sees only the advertisement above. Imagine you are waiting at a bus stop where in the real world you would see a poster with an ad for Coke, but your pair of google glass replaces the poster with an advertisement for Pepsi. Because you are wearing the glasses, you never see the advertisement for Coke underneath. This is a very realistic example of future advertising in AR and recently, Google filed for a patent that would allow it to sell ads in the Street View feature of Google Maps—an AR map program—potentially replacing signage that was originally photographed.
This issue is arguably similar to current metatag/keyword cases. A metatag is a word or small phrase that is embedded in the source code of a website and is not visible on the actual page itself. Similarly, companies can purchase keywords from search engines to trigger their advertisement to appear in a banner or in the user’s search results. Like metatags and keywords, triggering marks in AR are not visible to Google Glass users, but rather only the resulting advertisement is visible to the user. The metatag issue, however, is far from settled and the courts are split on whether metatags can infringe on trademarks. Courts that find infringement apply a test known as the initial interest confusion doctrine, a judicially created doctrine that permits liability for infringement when a customer is lured to a competitor’s good or service through the competitor’s use of the first company’s mark, regardless of lasting confusion.
Because AR necessarily augments the reality in which physical trademarks exist, any use of AR advertising will affect the appearance of physical trademarks and likely result in novel trademark disputes. While the The Lanham Act is sufficient to cover most trademark use in a variety of circumstances, trademark law could not have foreseen the creation of AR technology and thus the use of trademarks in Google Glass’s AR advertising. Courts will soon have to address whether actions performed in augmented reality can infringe on marks in physical reality. Perhaps more complicated, courts will also have to determine who owns the advertising space in a augmented reality world. For further examples, please see the John C. Havens article expanding on this issue.
* Rebeca Echevarria is a third year law student at Wake Forest University School of Law. She has a Bachelor of Arts in Politics, International Relations, and Biomedical Ethics from Mount Holyoke College. Upon graduation in May 2014, Miss Echevarria intends to practice Intellectual Property and Biotechnology law.