New EUIPO guidance on virtual goods, non-fungible tokens and the Metaverse

The rise in prevalence of the Metaverse, which can be characterised as a ‘collective virtual shared space’ where virtually enhanced physical reality and physically persistent virtual space converge, has led to an increasing number of EU trade mark applications relating to virtual goods and non-fungible tokens (NFTs).

This has prompted the EUIPO to release new guidance on how these types of goods are classified within trade mark applications. The correct classification for virtual goods will be Class 9, as they are treated as digital content or images. However, where it was previously acceptable to use the broad term virtual goods, there is now a requirement to specify the content to which the virtual goods relate (e.g., downloadable virtual goods, namely, virtual clothing).

The term non-fungible token (NFT) on its own will no longer be acceptable in Class 9; the type of digital items which the NFT authenticates must now be specified. This is because NFTs are recognised as unique digital certificates, registered in blockchain, which serve the purpose of authenticating digital items, but which are distinct from those digital items.

This new guidance may raise some questions with regards to the validity of registrations containing the previously acceptable terms virtual goods and/or non-fungible tokens, which will no longer be deemed sufficiently specific.

Many practitioners believe that the EUIPOs change in approach is an important step towards ensuring precision and clarity in applications which relate to the existence of virtual goods and NFTs. This will be crucial as the volume of applications relating to such goods continue to rise as transactions made within the metaverse become more frequent and extensive.

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Written by Ellie Rose & Keeley Williams for ip21 Ltd