Imagine strolling through the vibrant streets of Istanbul's Grand Bazaar, searching for that perfect Turkish coffee and sweet delights recommended by a friend. The scene is alive with people from all corners of the globe bargaining in different languages, colorful towels hanging from shop fronts, and the smell of herbs and spices filling the air... Can you picture yourself having the same shopping experience in the Metaverse, that decentralized space built of algorithms?
While the Metaverse promises to recreate aspects of real-world shopping, transitioning from the palpable, lively ambiance of the Grand Bazaar to the digital landscape of the Metaverse is not simple. Online shopping does not bridge the gap. To be a consumer in the Metaverse, one needs to have the right gear, like VR glasses or sensory devices, to feel immersed, and have the knowledge to navigate digital environments, interact with avatars and objects, and understand digital currencies governed by blockchain technology. At present, even the first step to participate in the Metaverse marketplace requires a level of technological fluency and sophistication that goes beyond traditional and online shopping. This shift leads us to question how the concept of the “relevant consumer” in trademark protection might transform in this digital territory.
The concept of the "relevant consumer" serves as a cornerstone in trademark law. The term refers to the consumer whose purchasing behavior, perception, and level of attention directly affect key factors such as likelihood of confusion, distinctiveness, and brand recognition. Though interpretations and terminology may vary slightly, this concept is embraced across different jurisdictions. Turkish IP Law No. 6769 incorporates the concept of “(general) public” in the assessment of likelihood of confusion, which is interpreted as the “average consumer”. The Turkish Patent and Trademark Office's Trademark Examination Guideline ("Guideline"1), revised in 2021, explores diverse consumer groups, referencing precedents set by both the Turkish Supreme Court and the Court of Justice of the EU. It distinguishes between the average consumer—described as "reasonably informed, reasonably observant, reasonably careful, reasonably experienced and circumspect"—and more attentive consumers who invest more time and money in their purchases. This spectrum also includes professionals and specialized publics such as medical practitioners and pharmacists.
The Guideline points out that the level of consumer attention varies with the type of goods and services, and the resources the consumer allocates for purchasing those goods and services. The relevant consumer engaged with technology and computer software systems is typically acknowledged for having a higher level of attention. In the Guideline, “computer systems and software development and design” is categorized under “…thegoods and services for which consumers are considered to have a high degree of attention…”. In a decision upheld by the Turkish Supreme Court, the computer game users were deemed "…careful and selective…"2. On the other hand, the level of attention of the consumers buying, let's say, beverages and clothing may not be considered that high. The relevant consumer of clothing was described as “…the average buyer who is not an expert or careful person…” in a separate decision3 by the Turkish Supreme Court.
All downloadable virtual goods are collected under the same sub-category with computer software and computer programs per the local classification system in Türkiye. Physical beverages, for instance, are classified in Class 32 while their virtual equivalents are in Class 9. So theoretically, if someone purchases an energy drink from a physical shop, they may be seen as an average consumer in Class 32, not particularly “selective and careful”. However, if the same person purchases a virtual energy drink in a computer game to boost their avatar's performance, it falls under Class 9 for software and programs, suggesting a more “selective and careful” consumer. This same contrast may apply to physical clothing (Class 25) versus downloadable virtual clothing (Class 9), raising the question; how will the courts and the trademark offices assess the sophistication levels of digital consumers and the real-world consumers? Are those purchasing virtual energy drinks considered “consumers of computer software” in Class 9, and if so, are they deemed more prudent than those shopping for physical energy drinks? Could it be claimed that our avatars exhibit more prudence when choosing virtual clothing than we do when buying the real thing?
While Classes 9, 35, 36, 41 and 42 have become digital celebrities, there are still many classes, goods, and services that do not make much sense from today's perspective when applied to the Metaverse environment. Take, for instance, the “storage and transport of trash, collection and transport of waste” in class 39. Will there be virtual trash and waste? Could virtual trash piles need virtual clean-up crews? Even if so, the parameters for evaluating the relevant class and consumer might take on a whole new dimension.
The journey from the Grand Bazaar to the Metaverse signifies more than just a change in scenery. We are not only changing our shopping venues; we are redefining who the shopper is. As the Metaverse continues to evolve, the concept of “relevant consumer” will undergo a transformation, challenging traditional paradigms within the intellectual property realm. Each step forward will unveil new questions. And who knows? Maybe our avatars will need to come together over virtual Turkish coffee, bringing more information and insights into the discussion!
Footnotes
1. https://www.turkpatent.gov.tr/duyurular/marka-inceleme-kilavuzu-guncellendi-18082021 (Available in Turkish only)
2. The Turkish Supreme Court 11th Civil Chamber, Case No. 2016/4972, Decision No. 2017/6822, December 4, 2017
3. The Turkish Supreme Court 11th Civil Chamber, Case No. 2017/2789, Decision No. 2018/7900, December 12, 2018
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