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Wassom, Brian D.; Underhill, Amber M.; Rossow, Andrew L. --- "Trademark law and the right of publicity in augmented reality" [2018] ELECD 1378; in Barfield, Woodrow; Blitz, J. Marc (eds), "Research Handbook on the Law of Virtual and Augmented Reality" (Edward Elgar Publishing, 2018) 192

Book Title: Research Handbook on the Law of Virtual and Augmented Reality

Editor(s): Barfield, Woodrow; Blitz, J. Marc

Publisher: Edward Elgar Publishing

ISBN: 9781786438584

Section: Chapter 6

Section Title: Trademark law and the right of publicity in augmented reality

Author(s): Wassom, Brian D.; Underhill, Amber M.; Rossow, Andrew L.

Number of pages: 24

Abstract/Description:

The emerging medium known as “augmented reality” (“AR”) may still be in its infancy, but it heralds an evolution in human creativity and communication that most of society has yet to fully grasp. The essential characteristic of AR is to liberate digital data and imagery from two-dimensional screens and allow that content to be perceived and interacted with as if it were just as volumetric and accessible as any physical object. Applying Marshall McLuhan’s axiom that “the medium is the message”—in other words, that the form of a medium embeds itself in the content transmitted through it, creating a symbiotic relationship by which the medium influences how the message is perceived—this means that AR will endow digital content with new, visceral familiarity, contributing to an erosion of the barriers between what is “real” and “not real,” and between what is “there” and “not there” in the world around us. Within such an environment, a certain degree of confusion and mixed messages are to be expected. The increasing adoption of AR for commercial messaging means that trademark-related disputes related to the medium cannot be far behind. AR has already begun to offer brand owners new and interesting ways to create, use, and expand upon their commercial identities. Those who would use those brand names and trademarks without permission, however, now also have the same abilities. As happens anytime a new mass medium is introduced, attorneys and jurists will be called upon to apply and adapt longstanding legal principles to uncharted factual territory. Creativity and an understanding of rapidly evolving technology, as well as a healthy respect for free speech and similar limitations on intellectual property rights, will be necessary to draw proper boundaries between lawful and unlawful commercial messaging in the emerging AR medium.