Augmented reality technology (AR), in which computer-generated images appear superimposed upon a real-world environment, is quickly advancing to a point of general commercial application. While predictions about AR market size vary, most analysts expect the market to exceed $50 billion in the next three to four years.
How consumers experience AR will likely vary, with some applications available through phones (Pokémon Go being the most famous example to date) and others through special AR glasses. An example of the latter case might be an immersive walking tour of New York in which users download an app and don glasses to experience the tour
One potential revenue stream for this market is the sale of advertising superimposed in a real-world environment, combining the techniques of location-based AR and superimposition AR. In the walking tour described above, or a navigation tool on a phone, as the user traverses the city, they might see not only AR-generated information and directional signals, but also advertising superimposed on buildings or street furniture (bus shelters, kiosks, etc.). Such uses raise a number of intellectual property questions. For example, does the AR developer need permission from a building owner or a street furniture franchisee to superimpose branding or advertising on their property? Does a building owner have any intellectual property rights it can exclusively license to certain AR providers, thus prohibiting non-licensees from superimposing logos or advertising on their property? Would advertisers have a claim if AR advertising, perhaps of a competitor, was superimposed on and "replaced" their own real-world advertising or store signage? We consider these and other issues below
AR Advertising On Unused Spaces
Assume in the first instance that the AR advertisement will be displayed on an otherwise unused space on a building's facade. In a few cases, such as the Empire State Building or the Chrysler Building, the building itself may enjoy trademark protection. For example, in White Tower System v. White Castle System of Eating Houses, 90 F.2d 67 (6th Cir. 1937), the U.S. Court of Appeals for the Sixth Circuit enjoined a competitor of the White Castle fastfood chain from using a similar white miniature castle store because the public associated this structure with the White Castle brand. However, AR developers are not replicating a structure, but rather creating the illusion that an image is superimposed on a building
A more instructive case is Rock & Roll Hall of Fame & Museum v. Gentile Productions, 134 F.3d 749 (6th Cir. 1998), in which the museum brought a trademark infringement and dilution case against a photographer selling a poster that depicted the museum. At the time, the museum held a state trademark for the building's design. The Sixth Circuit noted that "to be protected as a valid trademark, a designation must create 'a separate and distinct commercial impression, ... which identif[ies] the source of the merchandise to the customers.'" Here, the court found no support "for the factual finding that the public recognizes the museum's building design, in any form, let alone in all forms, as a trademark," and concluded that...
