Geolocation technology has provided brand owners with a game-changing ability to engage consumers directly and selectively by allowing for advertising that is geographically and temporally relevant.

The application of geolocation technology to mobile devices, in particular, is yielding important results as research shows consumers are more likely to engage with location relevant advertising and that an increasing number of consumers have GPS-enabled devices.

One of the most novel applications of mobile advertising has been in the area of Augmented Reality (“AR Devices”).  AR Devices such as Google’s “Project Glass” present a live view of an environment with elements augmented through computer-generated information.

In essence, Google’s “Glass” is a set of eye-glasses with access to the internet via voice commands, drawing on geolocation technology to allow users to search for local services, view maps, interact with friends via social media and record video.  A representation of the technology can be found here.

Google has stated that Glass will not feature advertising. However, that position could change as the technology matures and becomes commercially available.

Although widespread use of AR technology would appear to be at least several years away, brand owners may wish to be proactive in addressing the practical and legal issues that will affect the use of their brands in  the AR context.

To that end, trademark owners should consider:

• Taking steps to understand the AR Device technology and the opportunities for brand use and misuse;
• Reviewing existing franchising and licensing agreements to ensure such agreements address mark and logo use in mobile advertising; and/or
• Engaging with developers of the AR Devices to discuss how trademarks will be used and possibly taking an active hand in the development of advertising policies

This last point may present the greatest challenge given the demonstrated difficulties in drawing lines between fair and unfair advertising and use of competitors’ trademarks in the keyword advertising context.

While some of these parameters may be defined by analogy as the substantive case law on keyword advertising develops, there are issues unique to AR advertising that would have to be considered.

For example, what if advertisers pay AR service providers for the ability not just to place advertisements but to superimpose their advertisements on top of what consumers see, i.e. a virtual ad on a physical bill board (already containing an ad)?

What about possible right to publicity issues that might arise in virtual advertisements displaying a public figure? See “AR, Nascar Score for Budweiser Fans hung out (virtually) with Nascar star Kevin Harvick” by Christopher Heine.

While much remains speculative in this area, one conclusion can be drawn.

Any successful brand protection strategy in the AR sphere will require an application of traditional trademark guidelines coupled both with an informed understanding of specific opportunities for use (and misuse) created by the AR technology and a realistic expectation of the types of unmonitored consumer brand interactions which may have to be tolerated.

This article was prepared by Tara Vold (tvold@fulbright.com / +1 202 662 4657) of Fulbright’s Intellectual Property and Technology Practice.