Over the past several months, brands have rushed to filed trademark applications for registration with the U.S. Patent and Trademark Office (“USPTO”) and other national trademark bodies, often driven by uncertainty as to how their existing rights and registrations will apply when it comes to things like non-fungible tokens (“NFTs”) and the metaverse. Some of the most widely-covered applications in this realm come by way of Nike, which filed headline-making applications for registration for use on various virtual goods/services in October 2021 in the U.S., as well as in Singapore, Switzerland, Mexico, and Canada, and has since filed additional applications for metaverse-focused marks.
With such applications still pending before the USPTO – and not yet subject to either pushback from the trademark office in the form of Office Actions or publication in the Official Gazette (the current USPTO backlog for reviewing applications is at least 7.9 months), those looking to garner guidance from them as to how the USPTO will treat metaverse-focusedapplications for trademarks claiming use (or intended use) on “downloadable virtual goods;” “retail store services featuring virtual goods;” and/or “entertainment services, namely, providing on-line, non-downloadable virtual footwear, clothing, headwear, eyewear, [and] bags,” among other things, “for use in virtual environments” will have to keep waiting.
There are, however, clues to be found elsewhere under the Nike, Inc. umbrella, as some early trademarks for virtual goods in the fashion/footwear space have come from RTKFT, the digitally-native brand that the Swoosh acquired late last year. With relatively few examples of how the USPTO will handle the recent flood of metaverse-centric trademarks, a number of RTFKT’s U.S. registrations and pending applications are worthy of attention.
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