Further international consolidation of guidance on classification of NFTs and virtual goods

We have recently seen further consolidation of the practice adopted by Trade Marks Offices around the world in relation to the classification of NFTs and virtual goods.  Whilst the position in the UK and EU is now well established, a number of other national Offices have recently adopted similar practices, thereby bringing classification of such goods in line with the accepted position in the UK and EU.

In particular, both the New Zealand and Swiss Trade Marks Offices have formally adopted new classification guidelines that largely mirror the guidelines in place in the UK and EU, in which virtual goods (namely products 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). 

In addition, both the New Zealand and the Swiss Offices have confirmed that it is not possible to protect a trade mark in relation to NFTs (non-fungible tokens) in and of themselves, since NFTs are merely digital certificates that authenticate the provenance of a particular product or service. Rather, in order to protect a trade mark in relation to an NFT, it is necessary to identify the particular goods that are authenticated by that NFT (e.g. clothing authenticated by non-fungible tokens).  Again, this practice corresponds with the established practice in the UK and EU.

It appears that we are seeing a consistent approach being taken in relation to trade mark protection for Metaverse related goods and services, although there are still some notable exceptions, such as China in which it is not possible to protect a trade mark in relation to virtual goods or NFTs. Given that the Chinese Trade Marks Office still grants only limited protection for trade marks in relation to retail services (whereas in most other countries around the world it has been possible to protect trade marks for retail services for many years), it may well be some time before virtual goods are recognised and deemed protectable in China.