EU intellectual property office publishes approach for classifying virtual goods and NFTs


With the explosion in popularity of Non-Fungible Tokens (NFTs) in recent years that has seen seemingly ordinary pictures of apes being sold for tens of millions of dollars, the EU Intellectual Property Office (EUIPO) announced that it is being inundated with applications containing terms relating to virtual goods (e.g. virtual clothing, bags, accessories) and NFTs, especially in the metaverse.

As a result, the EUIPO recently published its approach for classifying these virtual goods and tokens.

According to the EUIPO, all downloadable material is proper to Class 9. “Virtual goods” are understood by the Office to be non-physical items that are purchased and used in online communities or online games, which usually constitutes metaverse. Thus, all virtual goods are proper to Class 9 because they are treated as digital content or images.

The EUIPO states that attention must be paid to the correct description during the classification procedure. For example, the terms 'downloadable goods' and 'virtual goods' lack clarity and precision and the content related to the virtual goods must be specified. An acceptable example would be 'downloadable virtual goods', namely, 'digital art'.

The 12th Edition of the Nice Classification includes the term “downloadable digital files authenticated by NFTs”. Within this context, NFTs are defined as unique digital certificates that are registered in a blockchain and are used as a means of recording ownership of an item such as a digital artwork or a collectible. The term is not understood to mean the digital item itself, but instead is the means of certification and cannot be accepted for classification purposes. An acceptable example would be 'downloadable digital art, authenticated by an NFT'.

The Office also noted that services relating to virtual goods and NFTs will be classified in line with the established principles of classification for services. An acceptable example of this would be 'provision of an online marketplace for downloadable digital art images authenticated by NFTs' in Class 35 (Advertisement, business management, organisation and administration, office functions).

The Office’s approach is set out in the 2023 draft Guidelines. Stakeholders have until 3 October 2022 to comment via the following link.

To learn more about trademarks and copyright, NFTs and civil law principles in the metaverse, visit our previous article here.

For more information on virtual goods and services, NFTs, trademark registration, IP rights for metaverse, contact your CMS client partner or local CMS experts.