METAVERSE JUNE 2022/2 – 2 / 4 观点
The Office has released some guidance on the classification of items relating to "virtual goods" and "non-fungible tokens (NFTs)".
This is exciting news for any trade mark practitioner who has not been living under a rock for the past year. NFTs are a new form of digital asset. Using blockchain technology, they provide proof of ownership for digital or physical objects. And the Metaverse itself has been covered widely enough in the media so that it no longer requires an explanatory note.
The proper classification of virtual and NFT-related goods as well as other assets often associated with the Metaverse has been a hot topic of discussion for months. Different theories have evolved and been talked about at international trade mark conference and, of course, online. Will virtual goods simply form a sub-category of the IRL goods contained in a particular Class? Or should a separate Class emerge for products in the virtual world?
Perhaps not. The EUIPO's position, at least, seems to point in a different direction. The Office confirms that it will be taking the following approach:
Moreover, the EUIPO points out that services relating to virtual goods and NFTs "will be classified in line with the established principles of classification for services."
Based on initial reactions on social media, practitioners clearly appreciate the fact that the EUIPO has published this timely clarification. And while the classification of "virtual goods" in Class 9 will not come as a surprise, the EUIPO's view on NFTs will probably spark further debate (e.g. regarding NFTs tied to physical goods).
One thing is certain: properly classifying all the things consumers may or may not enjoy in the Metaverse will keep the Office and trade mark lawyers busy for some time to come. With the Office "increasingly receiving applications containing" the items mentioned above, tricky trade mark conflicts may arise in Class 9. After all, who is to say whether "virtual sneakers" and "virtual burgers" are similar?
The EUIPO's above approach (linked here) is set out in the 2023 draft Guidelines. Stakeholders are invited to submit their comments by 3 October 2022.
This article was first published by MARQUES on Class 46 (linked here).
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作者 Dr. Christian Tenkhoff, LL.M. (UCL), M.Sc. (LSE) 以及 Inès Tribouillet
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