Are NFTs goods?
The EUIPO has published guidance on how virtual goods and non-fungible tokens (NFTs) should be classified, a question that has caused a lot of debate among trade mark applicants in recent months.
The guidance states that:
Virtual goods are proper to class 9 because they are treated as digital content or images, but the term virtual goods on its own lacks clarity and precision, so the content to which the virtual goods relate must be specified.
The 12th edition of the Nice Classification will incorporate the term “downloadable digital files authenticated by non-fungible tokens” in class 9. The EUIPO states that the term NFT on its own is not acceptable and the type of digital item authenticated by the NFT must be specified.
Comments on the EUIPO approach can be submitted until 3 October 2022.
The statement provides welcome clarity on this timely issue. However, it remains to be seen whether other IP offices will follow the same practice, and also whether it will lead to more conflicts, given that class 9 is already very crowded.