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Patents and Trademarks, Copyright Office Request for Comments on NFT

NFTs on the OpenSea marketplace


The U.S. Patent and Trademark Office and the Copyright Office are seeking public comments on their joint research into “intellectual property law and policy issues related to non-fungible tokens (‘NFTs’).” In a recently released notice, agencies say they are seeking public comment on these matters from now until January 9 to assist in their work on “NFT-related IP policy,” which they describe using the Merriam-Webster definition. : a unique digital identifier that cannot be copied, replaced or shared, which is recorded on the blockchain and is used to confirm the authenticity and ownership (both of a specific digital asset and specific rights associated with it, and “when conducting research”).

In a call for public comment, the USPTO and the Copyright Office set out 13 points (see them in full below), primarily asking commenters to list “the current use of NFTs in your area or industry, including types with NFTs (for example, digital assets, physical goods, services); and potential future applications of NFTs in your field or industry, including asset types that may be associated with NFTs ( for example, digital assets, physical goods, services). In an additional industry request, Offices ask: “How and to what extent are copyrights, trademarks and patents used or intended to be used in your field or industry to: (a) protect assets that are associated with NFTs; (b) Combat violations related to NFT-related assets offered by third parties; and (c) Ensure that appropriate reuse of NFT-related assets is available.”

In the same vein, they are also interested in how and to what extent NFTs are or can be used by IP rights holders to document: the authenticity of an asset; and the seller’s right to offer the asset for sale and to transfer any relevant or necessary IP rights associated with the asset, among other things.

When looking at the challenges and opportunities associated with the implementation/use of NFTs, Offices want to know about “any IP-related issues or opportunities associated with NFTs or NFT markets” as well as “whether, how and to what extent , may be used or create problems or opportunities for IP rights: to obtain rights, to transfer or license rights, and to enforce those rights.

And in a question that seems to Hermes vs Rothschild as well as Nike vs StockX references, offices ask commentators to “describe any IP-related impact on those in your field or industry experienced in connection with actual or perceived use of NFTs,” including “any legal disputes that have arisen…and the outcome of such disputes.” In addition, they wish to comment on whether “current IP laws are [are] enough to protect and protect IP in the context of the NFT”, and if not, what are the “gaps in existing IP laws” and what “legislation should be considered to address these issues”.

The questions stem from an announcement by the US Copyright Office and the USPTO this summer, in which they confirmed they would make a joint effort to look into NFT-related issues amid emerging questions and legal wrangling related to the new technology. The agency’s July announcement comes after Senators Patrick Leahy and Tom Tillis, who are respectively chair and senior member of the intellectual property judicial subcommittee, formally requested the two agencies to take a joint initiative to help the subcommittee understand “how NFTs fit into the world of intellectual property rights”, including how these rights look today and how they may develop in the future.

Issues for Public Comment

In a statement released on Wednesday, the Office says they “welcome comments from members of the public on any questions pertaining to the subject of this study, and are particularly interested in answers to the following questions.”

one. Please describe: (a) Current use of NFTs in your field or industry, including types of NFT-related assets ( for example, digital assets, physical goods, services); as well as (b) Potential future applications of NFTs in your field or industry, including types of assets that may be associated with NFTs ( for example, digital assets, physical goods, services).

2. Please describe any IP-related issues or opportunities related to NFTs or NFT markets.

3. Please describe how the NFT markets affect the production of IP-protected materials.

four. Describe how and to what extent NFTs are or can be used by IP right holders (including those who own trademarks, patents and/or copyrights) to document: (a) The authenticity of the asset; (b) Ownership or authority of the seller to sell the asset; (With) The seller’s authority to transfer any relevant or necessary IP rights associated with the asset; as well as (G) Any restriction on IP rights associated with the sale or use of an asset by a buyer.

5. Please describe whether, how and to what extent NFTs create problems for IP rights holders or those who sell assets using NFTs in relation to the activities described in question 4 above.

6. Please describe how and to what extent NFTs are used, can be used or create problems or opportunities for IP right holders (including those who own trademarks, patents and/or copyrights) to: (a) obtain your intellectual property rights; (b) transfer or license your intellectual property rights; (With) To exercise general control and management of their intellectual property rights ( for example, digital rights management tools, mechanisms to facilitate the payment of royalties, etc.); as well as (G) Enforce your IP rights, including any mechanisms that may mitigate infringement or help enforce contractual terms associated with the sale of an asset.

7. Please describe how and to what extent copyrights, trademarks and patents are or may be used in your field or industry to: (a) Protect NFT-related assets; (b) Combat violations related to NFT-related assets offered by third parties; as well as (With) Make available the proper reuse of NFT-related assets.

eight. Are current IP laws adequate to protect and enforce IP rights in the context of NFTs? If not, please explain why, including any gaps in current IP laws, and describe any legislation you think should be considered to address these issues.

9. Please describe any IP-related implications that your field or industry has experienced in connection with the actual or intended use of NFTs. If necessary, describe any legal disputes that have arisen in the following contexts and the outcome of such disputes, including references to any relevant litigation: (a) Relationship between NFT transfer and ownership of IP rights in the related asset; (b) Licensing of IP rights to an NFT-related asset; (With) Infringement claims where: (i) the NFT is linked to an asset in which another party owns IP rights, or (ii) the IP rights to the asset linked to the NFT are owned by the creator of the NFT; (G) The type and/or extent of IP protection afforded to the originator of the NFT, including when that party is not the originator of the related asset; as well as (e) The application of one or more exclusive rights under 17 USC 106 to NFT-related transactions.

ten. Please describe any instances where you observed a party send or receive: (a) Notice of alleged copyright infringement, counter notice, or material misrepresentation pursuant to 17 USC 512 in connection with the NFT; as well as (b) Other intellectual property lawsuits seeking the removal or restoration of NFT-related material.

For each such instance, please describe the nature and outcome of that claim or process, including whether the material was ultimately removed and, if so, whether the material subsequently reappeared. If a claim for infringement or 17 USC 512(f) was filed, please provide links to the court case and any relevant court decisions.

eleven. Please describe the extent to which adjustments are being made to IP portfolio planning and management in light of the advent of NFTs.

12. Please describe any experience of seeking IP protection or using NFT-related assets in foreign jurisdictions.

13. Please indicate any additional NFT-related IP issues that you feel should be taken into account by agencies when conducting this study.

Written by khirou

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