As virtual goods, blockchain-based assets, and immersive online environments become increasingly mainstream, the world of trademark law is rapidly expanding to accommodate them. Businesses entering the NFT and metaverse space are finding that traditional intellectual property principles still apply, but in novel and evolving ways. Trademark filings related to non-fungible tokens (NFTs), virtual goods, and metaverse platforms have surged, prompting both opportunities and legal uncertainties.
Why Trademark Protection Matters in the Virtual World
In virtual environments like gaming, digital marketplaces, and immersive VR platforms like the Metaverse, brands are playing an increasingly important role. A recognizable logo or product design can have just as much value in the metaverse as in a brick-and-mortar store. In these ever-increasing and popular digital environments, companies are faced with new arenas and ways to protect their trademarks in connection with digital goods and services. For instance, companies now must prevent misuse of their brand in virtual worlds or NFT marketplaces as they seek to secure early positioning in a potentially transformative new digital marketplace.
Given the low barriers to entry in the digital space, bad actors can easily mint NFTs or create digital products using a recognizable brand name or logo. Without clear trademark protection, enforcement becomes significantly more difficult.
Key Developments in Trademark Filings
Over the past two years, the U.S. Patent and Trademark Office (USPTO) has seen a marked increase in filings that include goods and services related to:
Major brands like Nike, Gucci, and McDonald’s have filed metaverse-related trademarks to protect their IP in this space. Even smaller businesses are recognizing the value of preemptively securing rights before entering the virtual marketplace.
Legal Uncertainties and Emerging Issues
Despite this growth, many legal questions remain unresolved. For example, are existing trademarks sufficient to protect digital versions of goods? In many cases, companies are opting to file new applications specifically covering virtual goods or services.
Moreover, what constitutes trademark use in the metaverse? Courts and the USPTO will likely need to clarify what qualifies as “use in commerce” for purely digital goods.
And how does a company even enforce its rights across platforms and jurisdictions? Because NFTs are sold on decentralized platforms, and metaverse environments often cross international boundaries, traditional enforcement mechanisms may prove challenging.
Until these questions are resolved, trademark strategy in this area requires a forward-thinking, adaptable approach.
Practical Steps for Businesses
If your business is entering the NFT or metaverse space—or even if it simply wants to prevent others from using your brand in these new environments—consider the following:
Trademark law is expanding to meet the needs of a digital-first economy, and the growth of NFTs and the metaverse presents both opportunities and legal challenges. By taking proactive steps now, businesses can secure their brand’s position in these rapidly developing spaces and avoid costly disputes down the road.
ABOUT THE AUTHOR
Michael joined Milgrom & Daskam as a law clerk where he worked in the litigation and intellectual property practice groups. He now holds the position of Associate. During his time at CU Law, Michael has served as a volunteer with the Korey Wise Innocence Project as part of a small team advocating on behalf of wrongfully convicted individuals in Colorado. He also serves as vice president of the Student Animal Legal Defense Fund, where he has organized fundraisers and donation drives for local animal shelters. Before joining the firm as a law clerk, he worked as a constitutional law research assistant for the University and as a litigation intern at a small Denver law firm.
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