The EUIPO has recently issued guidance to Trade Mark Applicants following an ever growing trend for non-fungible tokens (NFTs) and offerings in the Metaverse, together with a significant increase in the filing of EU applications.
The EUIPO have confirmed that the terms 'virtual goods' and 'non-fungible tokens' are correctly classified in class 9 (and that the 12th Edition of the Nice Classification will incorporate the term 'downloadable digital files authenticated by non-fungible tokens' in class 9). However, the EUIPO have advised that the term 'virtual goods' will need to be specified further by way of the actual content which the virtual goods refer to (e.g. downloadable virtual goods, namely, virtual clothing, virtual non-alcoholic beverages).
The EUIPO have also stated that NFTs are treated as unique digital certificates registered in a blockchain which have the purpose of authenticating digital items but are distinct from those digital items. In essence, the term 'non-fungible tokens' in class 9 will no longer be acceptable; the type of digital item which is authenticated by the NFT must be specified.
The resulting guidelines bring about the question of the validity of registrations which contain the broad (and previously acceptable) terms 'virtual goods' and/or 'non-fungible tokens' and whether those rights holders can expect a post-Praktiker approach to be adopted in the future by the EUIPO.
The Office is increasingly receiving applications containing terms relating to virtual goods and non-fungible tokens (NFTs). This is the approach that the Office is taking for classification purposes.
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