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We've discussed NFTs (non-fungible tokens) in our articles before, and in the process, we've learned many things, for example:
(Niranjan)
For a while, it's felt as though NFTs were completely unregulated. However, two of the major IP offices, the European Intellectual Property Office (“EUIPO“) and the US Patent and Trademark Office (“USPTO“) are now stepping in and issuing guidelines and undertaking investigations in regard to NFTs.
The European Intellectual Property Office (EUIPO)
The EUIPO released a notification that makes the point that they receive many trade mark applications that seek protection for “virtual goods” and “non-fungible tokens”. It says that the office's approach is as follows:
The office has invited parties to comment on these suggestions on or before 3 October 2022.
Clarivate discussed this topic at a recent IP forum. During the first of three blog series, the discussion focused on “The Future of IP in the metaverse” and aimed to unfold the IP ownership of the new virtual assets. A few points to note from the discussions:
The USPTO and the U.S. Copyright Office will undertake a wide-ranging investigation into NFTs. This is on the instruction of the Judiciary sub-committee on Intellectual Property.
The point of the investigation is to reach an understanding of “how NFTs fit into the world of intellectual property rights”, including what those rights look like today and how they may evolve in the future. The instruction makes the point that “NFTs are already in global use today and their adoption continues to grow since their relatively recent introduction.” It makes the further point that NFTs are already “found in nearly all spheres – from academia to entertainment to medicine, art and beyond”.
The brief sets out a non-exhaustive list of issues that the sub-committee feels need consideration. Here are a few:
There's more. There's a recognition on the part of the authorities that things move fast, and that “as technology, creativity and business models continue to evolve at an incredibly rapid pace, there will likely be new issues to consider” by this time next year.
Interestingly, the instruction from the judiciary subcommittee also mentions a number of the court cases that we have discussed in our previous articles, cases which the instruction says are “shedding light on the IP and IP-related challenges at play in this space”. They mention the following cases:
Given the fact that this is unchartered territory, it's good to see that the authorities are taking a real interest.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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