Various fashion luxury labels and brands have now started
expanding their marketing strategies to cover digital collectibles
and non-fungible tokens ("NFTs").
However, digital goods, like physical goods, are not exempt from
the conditions for obtaining trademark protection. On 8 February
2023, the European Union Intellectual Property Office (the
"EUIPO") issued a partial refusal to
Burberry Limited's ("Burberry")
application for the registration of its iconic check pattern for a
European Union Trade Mark ("EUTM") for
virtual clothing, accessories and several other services on the
basis of lack of distinctiveness.
Facts
Burberry's application was based on three (3) main classes
under the Nice Classification1, namely being, (i) Class
9, covering NFTs, digital tokens, and other downloadable and
virtual goods and/or material; (ii) Class 35, including retail and
wholesale services of goods and other virtual material; and (iii)
Class 41, providing for online
