TMEP § 1401.15
The 12th edition of the Nice Classification went into effect on January 1, 2023. The requirements of the 12th edition apply only to applications filed on or after January 1, 2023. Any changes in practice pursuant to the 12th edition supersede practice under prior editions and versions of the Nice Classification. A comprehensive view of the changes under the 12th edition can be found in the International Classification of Goods and Services for the Purposes of the Registration of Marks (12th ed. 2023) (Nice 12-2023), which is published by the World Intellectual Property Organization and available online on its website at http://www.wipo.int. Additionally, the impact of the changes on USPTO identification policy and practice can be viewed in the ID Manual.
The 12th edition of the Nice Classification set up a framework for classification of dispensers involving a general rule and exceptions. Generally, under Nice 12-2023, dispensers are considered storage containers for holding items and dispensing them, as needed. Thus, they are classified in Class 6 when made of metal and in Class 20 when they are not made of metal, regardless of whether the dispensers are automatic or non-automatic. Examples of dispensers that function as storage containers and are classified in Class 6 and Class 20 according to material composition are towel dispensers, toilet paper dispensers, and queue ticket dispensers.
There are exceptions to the general rule. Certain goods that incorporate dispensing actions are classified in classes other than Class 6 and Class 20 according to the function or purpose of the goods. For example, fluid dispensing machines for industrial use and fuel dispensing pumps for service stations are classified in Class 7 because they are considered machines.
When identifying and classifying dispensers for purposes of trademark registration, the Nice Alphabetical List and the ID Manual should be consulted for examples that follow the general rule and for examples of exceptions to the rule.
A non-fungible token (NFT) is "a unique digital identifier that cannot be copied, substituted, or subdivided, that is recorded in a blockchain, and that is used to certify authenticity and ownership (as of a specific digital asset and specific rights relating to it)." https://www.merriam-webster.com/dictionary/NFT (accessed October 14, 2022). Under the 12th edition of the Nice Classification, the Committee of Experts added the entry "downloadable digital files authenticated by non-fungible tokens [NFTs]" to the Nice Alphabetical List in Class 9. Classification of said goods in Class 9 is based on the wording "recorded and downloadable media, computer software" in the Nice Class Heading for Class 9 and is analogous to the Nice Alphabetical List entries "downloadable image files" and "downloadable music files" in Class 9.
Although "downloadable digital files authenticated by non-fungible tokens [NFTs]" are clearly classified in Class 9 pursuant to Nice 12-2023, that wording is not acceptable to identify the goods. See TMEP §1402.01. Generally, identifications for downloadable digital files authenticated by non-fungible tokens must indicate the type (e.g., audio files or image files) and subject matter of the files. This information is required in order to provide public notice regarding the nature of the goods and to enable informed judgments concerning likelihood of confusion under 15 U.S.C. §1052(d). Additionally, identifications must not include square brackets; however, parentheses may surround acronyms following the wording for which the acronym stands, such as "non-fungible tokens (NFTs)." See TMEP §1402.12. Examples of acceptable identifications in Class 9 for downloadable files authenticated by non-fungible tokens include the following:
For additional guidance on identifying goods authenticated by non-fungible tokens, consult the ID Manual.