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  • Writer's pictureRosie Burbidge

What is an NFT (according to UKIPO)?

Updated: Oct 31, 2023


The UK Intellectual Property Office has published welcome guidance on the classification of NFTs, virtual goods and services provided in the metaverse.


Many businesses are interested in obtaining trade mark rights relating to NFTs, and this guidance will be helpful for UK applicants. It complements guidance for EU trade marks published by EUIPO last year (see our July 2022 blog post, “Are NFTs goods?”).


NFTs

The IPO will not accept NFTs as a classification term alone without an indication of the asset to which the NFT relates. But it will accept the following in class 9, in line with the 12th edition of the Nice Classification:

  • digital art authenticated by non-fungible tokens [NFTs]

  • downloadable graphics authenticated by non-fungible tokens [NFTs]

  • downloadable software, namely, [list the type of goods], authenticated by non-fungible tokens [NFTs]

  • digital audio files authenticated by non-fungible tokens

  • downloadable digital files authenticated by non-fungible tokens [NFTs]


Physical goods clearly defined as being authenticated by NFTs will also be accepted, for example:

  • artwork, authenticated by non-fungible tokens [NFTs] [Class 16]

  • handbags, authenticated by non-fungible tokens [NFTs] [Class 18]

  • Training shoes, authenticated by non-fungible tokens [NFTs] [Class 25]


This terminology in class 35 will also be accepted:

  • Retail services connected with the sale of [e.g. virtual clothing, digital art, audio files] authenticated by non-fungible tokens

  • Provision of online marketplaces for buyers and sellers of goods and services which are authenticated by non-fungible tokens

The IPO says other uses of NFTs will be considered case by case.


Virtual goods and services

Virtual goods will only be accepted in class 9 if they are clearly defined, such as “downloadable virtual clothing, footwear, or headgear” or “downloadable virtual handbags”. Similarly, virtual services are accepted: for example “education and training services delivered by virtual means [class 41]” and “conducting interactive virtual auctions [class 35]”.


Services provided in the metaverse will be accepted in the same class as traditional forms of delivery (e.g. “conducting interactive auctions via the metaverse” in class 35). However, it may not be possible to take this approach where the service in the metaverse does not fall in the same class as the traditional form of deliver, which may result in the examiner seeking clarification.


The IPO says it recognises that this is a fast-moving field and the guidance will be updated as and when new developments arise, so this may not be the last word.


What does this mean?

This guidance is helpful for the many businesses (especially in the fashion, entertainment and luxury sectors) who are exploring commercial opportunities with NFTs and the metaverse.


Careful attention must always be given to drafting specifications when filing trade mark applications, particularly relating to evolving technologies. Please contact us if you would like to discuss further how this guidance affects you and your trade mark portfolio.


To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com


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