This year, the pandemic forced brands to reinvent themselves to stay virtually close to customers. A surprisingly high number of companies quickly turned to augmented reality ("AR"), recognizing the strong power of this advanced technology for promoting and selling goods.

AR provides memorable and fun customer experiences while developing a relationship with the brand. Through AR, customers may, comfortably from home, try the latest pair of sneakers or test make-up by simply using a smartphone camera to capture images of their feet or face.

Despite the undoubted advantages that this technology can bring, it also poses a number of IP challenges. Here are a few examples:

• Copyright or patent claims could be brought for the unlicensed use of third party technologies or IT tools.
• The ownership of IP rights to the AR software could be tricky to establish, even when it is developed internally or when a software developer is hired.
• The use of open source programming languages or databases - including, for example, image libraries for body recognition - could lead to licensing obligations that may conflict with the brand’s exclusive rights.
• Customers, while using AR, may also capture images of third parties trademarks or copyrighted works and then share these on social media, at the risk of attracting enforcement action from rights owners.

Next steps

Being aware of possible risks and issues such as those outlined in this note will help brands and consumers to take action to avoid IP infringement situations. Most issues arising from AR marketing could be circumvented by licensing and other contracts, disclaimers or establishing specific terms and conditions.

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