So, while numbers of NFT trademark applications increased prodigiously, the answer to the burning question, am I too late to the party to register the name of my NFT-based business? is a clear “no.” There is still plenty of room out there. The number of applications so far is only a token compared to the amount of commerce streaming this way.
Four reasons why you have not missed the boat:
1. If you look at all the marks filed to date you may think that owners do not seem to be particularly creative. A lot of the more predictable NFT-related terms seem not yet to have been filed. Whether this is characteristic of the industry or just a coincidence, it is hard to tell.
2. A number of the applications are owned by already-powerful brands who are seeking to carve out and expand their reach into this area. Since most of their brand names likely would not have been available anyway, there is no loss to the rest of the industry if they are blocked from adopting and using those terms.
3. Less than 0.3% of all trademark applications filed in the United States last year were for services or products including the terms “NFT” or “non-fungible token.” For those belt-and-suspenders types among us, that means 99.7% of all trademark applications had nothing to do with NFTs. There has been a landgrab, but not exactly a gold rush. It is a little bit like Abe Lincoln supposedly said about the Patent Office in the 1860s, namely, that there may come a time when the Patent Office will be closed because everything that could be invented has already been done. (Not so much.)
4. Lastly, from where a judge would sit, the best names are going to be the ones without “NFT” in them.
When it comes to the Trademark Office, your risk of being an early adopter is mainly that it may take a bit longer for your application to proceed through the examination process. It takes the Trademark Office, like most institutions, a little while to decide exactly how they are to understand new things. For NFTs, the questions include: (a) are NFTs products or services (could be either, actually)? (b) what does it mean to mint NFTs or to sell them? (c) are you auctioning them? and (d) what kind of things are you tokenizing, anyway? Once the kinks are ironed out, these trademarks will proceed in the ordinary course – which is to say sometimes more quickly and sometimes (like at present) more slowly than companies would like. Though the Trademark Office has gotten up to speed on NFTs very quickly, it is going to take a while for the entire business of non-fungible tokens to reach a level where consumers are quickly familiar. I started helping clients protect their trademarks and create and protect their NFT brands overall back in the unenlightened times of 2020. That is not to say no one ever registered the abbreviation “NFT” before; where else would you buy a ballcap if you wanted to stress you were called “Not From Texas,” or your company was called “Nano Filtration Technologies” (U.S. Trademark Registration No. 3640108 – you could look it up).
If your business is organized outside of the U.S.A. or is going to work worldwide, the unpredictable factor hops back into play. While so many companies are now adopting marks for NFTs, not every international trademark office has adapted as quickly as the USPTO. It is always a challenge to find uniformity in practices among countries, but with emerging technologies or brand-new products, many new names can get stuck in the mud.
Some countries are more rigorous devotees of the international agreements which define products and services. When a new concept like NFTs springs up, it can take time to get proper, somewhat-uniform descriptions in place.
The fourth factor may well be the most important. Even when you account for the speed with which the market is moving, there is an almost unlimited number of trademark choices at your fingertips. As always, if you simply make up a random name which does not have any specific meaning related to NFTs except the one you give it, your options will stay wide-open (as long as someone else did not have the same idea before you).
Some worry that all of the good NFT names would be gone. But that is generally not how it works. The good names are not necessarily the ones which use NFT or some play on words. The distinctive ones are the ones which are going to differentiate your product from everyone else’s. The more “NFT”-type words you have in your trademark, the more difficult it is going to be distance yourself from competitors, and to stop infringements. Randomness is one of the great traits in most trademarks. The more random your name, the easier it is going to be to stop a would-be competitor from using something similar. You want your trademarks to be like your NFTs – uniquely non-fungible.