Intellectual Property 
The UKIPO Offers Guidance for NFTs and Virtual Goods
Published 20 April 2023

Following on from Guidance Notes issued by the US Patent and Trademark Office and the European Intellectual Property Office, the United Kingdom Intellectual Property Office (UKIPO), on 3 April 2023, issued its own detailed Guidance Note on the “Classification of non-fungible tokens (NFTs), virtual goods, and services provided in the metaverse”.

The UKIPO’s note confirms that, along with many other IP Offices around the world, it has seen a dramatic increase in the filing of trade mark application with specifications referring to these types of items.

In recognising how NFTs have been developed over time, the UKIPO has confirmed that NFTs will not be accepted as a goods’ item on their, but rather, must be linked to an asset. The UKIPO offers examples of the types of specifications that it will accept in relation to a Class 9 filing, including:

• digital art authenticated by non-fungible tokens [NFTs]
• downloadable graphics authenticated by non-fungible tokens [NFTs]
• downloadable software, namely, [list the type of goods], authenticated by non-fungible tokens [NFTs]
• digital audio files authenticated by non-fungible tokens
• downloadable digital files authenticated by non-fungible tokens [NFTs]

The UKIPO has also recognised hat NFTs can be used as a tool to verify the authenticity of an asset, and for this reason, suggested that it will allow authentication specifications in trade mark filings, to cover:

• artwork, authenticated by non-fungible tokens [NFTs] [Class 16]
• handbags, authenticated by non-fungible tokens [NFTs] [Class 18]
• Training shoes, authenticated by non-fungible tokens [NFTs] [Class 25]

A similar approach has been offered by the UKIPO in relation to “virtual goods”, allowing them to register in Class 9, not on their own, but linked to a goods item – for example, downloadable virtual clothing, footwear, or headgear; and downloadable virtual handbags, would seem to be acceptable for now.

This Guidance Note is stated to apply from its release to examinations.

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