The physical reality around us is transforming almost imperceptibly into augmented reality (AR). So far, most of us associate the latter mainly with the entertainment industry (such as, say, PokemonGo). Meanwhile, augmented reality may become ubiquitous and permanent – something that cannot be switched off by closing an application or removing AR glasses.

We may be dealing soon with a reality in which a digital layer of images and sounds is applied constantly and automatically over the physical world. This augmented reality, constituting a complete and permanent connection between the “real” reality and that generated by computer, will constitute a clickable, digital overlay for the physical world.

To see how shopping or making tea could look like in augmented reality, I suggest watching some of my favourite AR films: Hyper-Reality or Augmented (hyper) Reality: Domestic Robocop, both by Keiichi Matsuda.

The evolution towards AR may lead to various contentious issues, including those relating to infringements of intellectual property rights or fair competition rules. Here are some examples of conduct that could arise in augmented reality.

Example 1: trademark

A store shelf product is labelled with trademark X. However, a digitally generated image shown through AR contact lenses, has replaced that sign with trademark Y. Certain that you are buying product Y, you actually purchase product X from another firm.

Example 2: enterprise designation

You want to tank up at fuel station A. But AR technology amends the images of two other companies’ (B and C) fuel stations to look like station A. A digitally generated overlay converts the station’s logos and colour schemes. After using the fuel pump, you want to pay and show a loyalty card from company A. It is not accepted and you discover that the service station belongs to company B.

Example 3: advertising and information

A roadside billboard advertises restaurant X: only 5 km away – turn right at the roundabout. However, the car’s factory-mounted AR windscreen transforms the message. Seen in augmented reality, the board announces that you should turn left and drive for another 50 km, and apart from that, the restaurant has just closed for refurbishment. At the same time, an image is shown of a nearby competing restaurant Y.

Example 4: copyright

A gallery is organising a paid exhibition of photographs of contemporary young artists. On the gallery’s instructions, a computer generated AR image is displayed to all visitors that automatically enhances the photographs on show with additional graphics, visualisations and sounds and, moreover, distorts the figures in the photographs.

Digital content trigger

Examples 1-4 show that specific content, such as a logo, word, or shape, if it falls within the field of vision of an AR viewer, may be a trigger that activates a digital overlay that alters, obscures or distorts the actual content. For example, if person X’s retina finds itself within the field of view of other persons, people looking at X will always see that person with digitally-generated  makeup, even if that person is not wearing any. The same goes for other content: if the field of view includes a Pepsi sign, the program can activate and display the Coca-Cola sign instead. An excellent example is a certain AR application that uses the logo of one of the fuel companies as a content trigger[1].

Infringements

In each of the four examples above, the infringement is associated with the use of computer-generated images, sounds and information that appear instead of, or in addition to real ones. Examples 1 and 2 involve misleading viewers as to the origin of a product or service. The situation described in 3 amounts to the dissemination of false information in conjunction with (most probably) misleading advertising. The situation in example 4 is not so clear-cut. The distortion of images using elements generated by AR may constitute an enhancement of a work of art. The gallery’s actions would therefore need to be assessed in relation to the minutiae of the agreements it has with the photographs’ authors (to check if the gallery has the right to distribute elaborations of the photographs). This means that the above cases (or in case 4 – may) involve infringements of trademark, fair competition or copyright law.

Certain problematic issues

Since certain types of content can act as triggers – setting off other computer-generated images or sounds, and perhaps soon even smells – the foremost question is who should be responsible for it, who has the right to decide which content is an activator, and which is modified or hidden, and on what basis this should take place.

It is also worth considering the impact on potential AR trademark infringement cases of CJEU case law on keywords used for advertising in internet search engines (e.g. CJEU judgment in the Interflora case of 22 September 2011, C-323/09). This is a case in which the entry into a search engine of keywords that are also trademarks of a given firm, causes the display of advertising of a third-party product in the search results. One can see certain analogies here in the actions taken and the generation of content.

There are no lawsuits pending, as yet, for IP infringements involving AR, as in examples 1-4 above. However, incidental cases are already arising that could be a point of reference for the future. For example, in 2002, an association that owns several buildings in Times Square filed a lawsuit against Sony, which had digitally generated and placed on those buildings advertising billboards that distorted others actually there. Sony had taken those steps to shoot scenes for the Spider-Man movie. The association pointed out that, among others, Sony’s actions had infringed trademarks, trade-dress and constituted unfair competition (the court did not admit the claimant’s arguments and dismissed the claim, stating that, in this case, artistic freedom had justified Sony’s actions).

Infringements of intellectual property rights under AR may also give rise to a number of procedural difficulties, such as the collection and safeguarding of evidence.

The tremendous opportunities the AR brings mean that it is also worth considering whether IP rights agreements will require certain changes or clarifications, such as in connection with licensing trademarks or works – in the context of their scope of  use or the dissemination of the works. Of particular interest and potential are the legal issues associated with copyright concerning building designs and architectural and construction projects – augmented reality may be widely used in architecture and construction.

Undoubtedly, AR is an area that may develop strongly in the next few years. It is worth considering now the legal problems that may accompany this development.

Lena Marcinoska