On June 23rd, 2022, the European Union Intellectual Property Office (“EUIPO”) published its recommendations regarding the class to be opted for when applying for a trademark designating virtual goods, non-fungible tokens (“NFT(s)”) and other products displayed in metaverse.

Considering the increase in the applications containing terms relating to virtual goods and NFTs, EUIPO’s clarifications simplify applicants burden in their choice of classes to be applied for and in the description to be adopted. From experience, EUIPO’s guidance on such topic is more than welcome to avoid hazardous process as the terms non-fungible tokens and NFTs were not seen as acceptable on their own by the EUIPO and led to several refusal from the office.

The EUIPO indicates that Class 9 is appropriate for virtual goods “because they are treated as digital content or 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)”.

It further states that the 12th Edition of the Nice Classification will amend the list of products designated under Class 9 to include the term “downloadable digital files authenticated by non-fungible tokens”.

One should also note that the EUIPO insists that the type of digital item authenticated by the NFT must be specified in Class 9, as the NFT only acts as authentication certificate for such items.