Intellectual Property Australia (IP Australia) has recently released new guidance that addresses the classification of trade marks for emerging technologies, providing clarity in an ever-evolving landscape. This is a response to the increase in trade mark applications relating to virtual goods, metaverse, non-fungible tokens (NFT), and the blockchain.
According to IP Australia, virtual goods are correctly classified, however, the terms “virtual goods” and “downloadable goods” alone lack specific and will not be accepted. As such, applicants must specify the exact nature of the virtual goods, for example, software, music, etc.
Services in virtual environments such as the metaverse are viewed to have an impact of the service in the real world. Where the purpose and impact of the service are the same, whether it be virtual or not, the virtual service will have the same classification as its physical counterpart. Conversely, if the virtual service is different to the real world, it will have a specified virtual classification.
IP Australia has deemed NFTs as neither goods nor services. Instead, NFTs are viewed as a means of certification. Accordingly, applicants must specify the exact nature of the goods or services being authenticated, as a claim for just the NFT lacks specificity and will not be accepted. Where an NFT is used to authenticate a physical object, it will be classed in the appropriate goods class.
Blockchain technology is categorised as a feature of goods or the means through which services are rendered. Applications must specify the goods or services that are being facilitated by the blockchain and be classified accordingly.