In the beginning there was nothing… or very little. Starting from barter, the man never stopped innovating his way to trade, almost as if it were his second nature… Agriculture and breeding, maritime explorations in search of new products, development of transport on land and the sea as in the sky. Trade gradually crossed borders, cities, villages, roads, and dangers to be fulfilled directly at home, camped in front of a computer, tablet or smartphone. Who these days has never bought online? Since already several years, the stars have aligned in favor of marketplaces, these giants of digital commerce through which almost everything buys…
Widespread, the law has worked to make room for digital commerce in favor of consumers, but also to guarantee competition and market stability. The legislator has
moreover warned against the forms of disloyalty, the problems of conformity and framed the deadlines of deliveries and retractation. The Ministry of the Economy hastened to denounce the
drifts of dropshippinga recent and yet legal practice of digital commerce.
Yet, despite this rapid and everyday adaptation, it appears that digital commerce is evolving in a significant and different way. Initially focused on
consumption of tangible products or services, digital commerce is gradually slipping into the sale of virtual products and services… via other worlds…
The metaverse: towards a transformation of digital commerce
What if Steven Spielberg’s film Ready player One, released in 2018, turned out to be a prophetic image of the market of tomorrow? Virtual worlds connected to the internet, where everything can be bought
via virtual currencies and securities? Where everyone would have the opportunity to live the life of their dreams through their avatar? If the reality does not yet exceed the fiction, some companies have understood
the potential that the metaverse could generate in e-commerce and data collection. It is no coincidence that in 2021 the Facebook company changed its name to
Meta in view of its futuristic program. If the concept seems to come out of a science fiction novel, the number of people connected in these virtual universes continues to increase, and new
emerging practices… Ranging from the purchase of virtual apartments, clothing, and works of art…
the metaverse is above all based on an immersive experience made possible by 3D technologies, plunging the consumer into a virtual world. As surprising as that
may seem, the avatar of the user can buy products designed virtually and which do not necessarily exist in reality. Recently Nike has massively invested in the
virtual mode by selling its range of shoes: CryptoKicks whose prices can cap more than 10,000 dollars… Others have the ambition to make the metaverse a
vector for acquiring virtual real estate through sales, development, rental management, on the same model as standard real estate agencies.
Virtual reality headsets, tablets, controllers, there are many products sold physically that are intended to optimize the experience of the metaverse. A high-level experience
definition that gives users a higher degree of confidence in the quality of the products they buy. With stores and virtual fittings, the digital commerce of
metaverse will no longer be subject to the constraints of opening hours, compliance with delivery deadlines, compliance issues, recruitment of salespeople, etc. If the system seems too
beautiful to be true, it is in any case virtual and all the more beneficial since it makes it possible to test the popularity of a product without manufacturing it while providing the consumer with a
The first experience of NFT’s
The strong enthusiasm experienced by the metaverse today is mainly due to the success of NFT’s which lay the foundation for the new electronic commerce. Started in
the art market sector with the dazzling success of the “Bored Ape Yacht Club” collection, whose images sell for exorbitant prices, the NFT’s have gradually opened up to other
sectors… The cinema took advantage of this momentum to invest the NFT’s market with a first film entirely financed in this way and directed by a certain director named Martin
Scorsese… As you will have understood, the NFT’s will have benefited in their infancy from powerful relays, stars, entrepreneurs and influencers. They are even a token of belonging
social, a closed and exclusive club bringing together a community of individuals holding the same family of NFT’s.
First experience of the commercial metaverse, the enthusiasm around NFT’s has only pushed the big companies to arm themselves to conquer a new world.
Amazon has started to equip itself with technology from the metaverse while eBay plans to launch its platform for selling NFT’s. Avant-garde and visionary, the fashion sector has no
escaped this dynamic to take on this new form of creativity. Fashion products, games and NFT’s works, diversify the arsenal designed by Gucci, Louis Vuitton, or even
Balenciaga in partnership with renowned designers…
Even if the harvest of glory may experience setbacks such as the recent fall of NFT’s with the bursting of the speculative cryptocurrency bubble, the fact remains that the
mechanism fascinates and will continue to improve. NFT’s have proven to the world that digital commerce is undergoing profound change across the metaverse. Any further
than a simple investment, it has metamorphosed into a gateway to a new way of consuming by taking the lion’s share of business in the 21st century.
A legal world to rebuild?
The changes in digital commerce do not take place entirely without clouds and bring their share of questions. If digital, consumer and competition rights
occupy a ready-made place when it comes to classic marketplaces, certain sprains and hesitations are to be raised in the metaverse. On the one hand, it seems difficult to imagine the future of the metaverse without the decisive action of GAFAM raising the question of a competitive asymmetry. On the consumer side, some are advocating for a legal extension of its
personality and legal protection in the metaverse, while the more conservative propose a distinction of regimes.
Intellectual property law also seems affected by these developments, with the uncertain legal qualification of NFTs having something to do with it. Being “legal aliens”, oscillating
between title deed and simple token similar to virtual currency, the actions attached to them are uncertain. The relationship between counterfeiting and NFT’s has in particular been the subject of
several disputes in the United States. The New York Court notably ruled in favor of Hermès about the diverted reproduction in a digital work of his iconic bags
in the work Meta Birkin.
Rome was not built in a day, it will certainly take a few years before the metaverse takes root in practice and digital commerce takes on a new
dimension. The rules of the game will most certainly be set by practice, and the evolution of this new form of business, and the mentalities surrounding it. Some lament the
disintermediation of exchanges and the disconnection of morality at the cost of a new way of consuming, which will change in depth. Nevertheless, this phenomenon is
already at our doorstep… it’s not about the future… but about now!
Tribune written by Raphaël A. Hérimian, business lawyer
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