The European Union Intellectual Property Office (EUIPO) has finally published their practice guidelines regarding so-called "virtual goods". In recent times, the office has received plenty of trademark applications for goods and services to be used in the metaverse, while there is still legal uncertainty about their actual nature. For example, would a virtual item of clothing sold in a videogame in the metaverse belong in class 25, like real-life clothing? Or in class 9, like any other digital good?
The EUIPO has issued a short note confirming virtual goods belong in class 9 as they are treated as digital content and images. However, the term virtual goods on its own lacks clarity and precision so must be further specified by stating the content to which the virtual goods relate (e.g. downloadable virtual goods, namely, virtual clothing). In addition, the office informs that the next edition of the Nice classification will include NFTs in class 9, which it defines as downloadable digital files authenticated by non-fungible tokens. These must also be specified in order to be admitted by the EUIPO in a trademark application.
These helpful clarifications have been published on the EUIPO website and will form part of the 2023 Test Guidelines.
Esquivel & Martin Santos