How the concept of the relevant consumer could shift in the metaverse under the Turkish classification system
While the metaverse promises to recreate aspects of real-world shopping, transitioning from the palpable, lively ambiance of real places like the Grand Bazaar in Istanbul to the digital landscape of the metaverse is complicated. Shopping in a decentralised space does not bridge the gap between conventional online and real-world retail.
To be a consumer in the metaverse, one must have the right gear (eg, VR glasses or sensory devices) to feel immersed. Consumers also need the right knowledge to navigate digital environments, interact with avatars and objects and understand the digital currencies governed by blockchain technology.
Currently, 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 leads us to question how the concept of the relevant consumer in the context of trademark protection might transform in this digital landscape.
The relevant consumer and Turkish guidelines
The concept of the relevant consumer is a cornerstone of trademark law. The term refers to the consumer whose purchasing behaviour, perception and level of attention directly affect key factors of trademark assessment, such as likelihood of confusion, distinctiveness and brand recognition. While interpretations and terminology may vary slightly, this idea has been adopted in many different jurisdictions. Turkish IP Law 6769 interprets the concept of the “(general) public” as the average consumer in the assessment of likelihood of confusion.
The Turkish Patent and Trademark Office (TPTO)’s Trademark Examination Guidelines, revised in 2021, explore diverse consumer groups and reference precedents set by both the Turkish Supreme Court and the EU Court of Justice. The guidelines distinguish 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 specialised members of the public, such as medical practitioners and pharmacists.
The guidelines point out that the level of consumer attention varies depending on the type of goods and services, and the resources that the consumer allocates for purchasing them. The relevant consumer that engages with technology and computer software systems is typically acknowledged as having a higher level of attention. In the guidelines, “computer systems and software development and design” is categorised under “the goods 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”.
On the other hand, consumers buying beverages and clothing, for example, may have lower levels of attention. In a separate decision by the Turkish Supreme Court, the relevant consumer of clothing was described as “the average buyer who is not an expert or careful person”.
Turkish classification system for virtual goods
All virtual goods are collected under the same sub-category as computer software and computer programmes per the local classification system in Türkiye. For example, physical beverages 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 and thus 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 programmes, which could be indicative of a more “selective and careful” consumer. The same contrast may apply to physical clothing in Class 25 versus downloadable virtual clothing in Class 9.
This raises questions about how the courts and trademark offices will assess the sophistication levels of digital and real-world consumers – whether those purchasing virtual energy drinks should be considered “consumers of computer software” in Class 9, and if so, whether they should be deemed more prudent than those shopping for physical energy drinks. If this is indeed the case, perhaps it could be claimed that we exhibit more caution when choosing virtual clothing for our avatars than we do when buying the real thing.
Looking ahead
Aside from Classes 9, 35, 36, 41 and 42, there are still many classes, goods and services that do not make much sense when applied to the metaverse. For example, 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? If so, the parameters for evaluating the relevant class and consumer could 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 the relevant consumer will undergo a transformation, challenging traditional paradigms in the IP realm.
