Australian TM Office issues guidance on registration of trade marks relating to virtual goods and services

Following the recent increase in the filing of trade mark applications covering goods and services relating to NFTs and the Metaverse, a number of IP Offices around the world (including the UK IPO, the EU IPO and WIPO) have issued guidance as to the correct classification of such goods and services.  The Australian IP Office is the latest IPO to issue such guidance and update their local classification practice accordingly.

The guidance issued by the Australian IPO is largely in line with that of WIPO and the UK & EU Offices, thereby adding a further level of international consistency in this area.  In particular, virtual goods (i.e. objects for sale and for use in the Metaverse, such as clothing for avatars, etc.) fall within Class 9, irrespective of whether the real-world equivalent of those virtual goods would fall within a different class (real-world clothing, for instance, would fall within Class 25).

This does mean that Class 9 will inevitably become overcrowded in time, since all virtual goods will fall within this class.  In turn, this is likely to result in an additional level of complexity when undertaking clearances searches for new brands, and when seeking registered trade mark protection for new brands.  We would therefore recommend seeking specialist IP advice before adopting a new brand, whether that brand is to be used in the real world or in relation to virtual goods or services provided in the Metaverse.