Burberry check trademark rejected for web3 virtual goods

Burberry applied to trademark its signature check for the metaverse, but faced a partial rejection.

The European Union Trademark Office (EUIPO) did not accept Burberry’s iconic red, black and white stripes on a beige background, as being sufficiently ‘distinct’ for certain product classes.

Burberry intended to trademark goods in class 9, which consists of NFTs and digital tokens, downloadable products, virtual goods, and other virtual material; class 35, which relate to retail and wholesale services for products and presentation of products in the media for retail purposes; and class 41, which includes services that provide online non-downloadable digital collectibles, information and entertainment online.

The rejection comes from a Spanish trademark office one year after filing the trademark request, in February 2022.

“The EUIPO bases its refusal on the same strict criteria that it maintains with 3D and pattern marks applied to objects in the real world,” Cristina Gilabert, lawyer and key account manager of Pons IP Brands, told Spanish publication CincoDias. “The examiner, when carrying out the distinctiveness analysis and evaluating consumer perception, must take into account that these virtual items emulate physical products, that is, that the public will perceive them as a bag or a scarf, not as an NFT. The analysis is, therefore, the same, whether it is physical or virtual products. The brand must be as distinctive as if it were requested for a physical product.”

While Burberry was granted to trademark its check for downloadable skins, other items were not registered.