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May 2021 • PAGE 8 OF 9 • Presumption of ownership. Trademark registration creates the legal presumption that the registrant owns the trademark.58 One point to note with respect to these benefits is that trademark registration is optional. No one is required to file a trademark, but the decision to register and the level at which you file (i.e., state or federal) will determine the scope of your rights. Since this process is entirely optional, the benefits conferred by trademark registration on NFT ownership ought to be sufficiently distinct and significant to justify the time and expense of trademark registration. Comparing the optional benefits of trademark registration with the inherent qualities of NFTs will be instructive on the merits of developing a process for registering NFTs as trademarks. Public notice. Interestingly, a primary benefit of both trademark registration and NFT ownership is public notice. Trademarks are stored on a state or federal database and are searchable by anyone looking for a similar trademark. The database, in essence, functions to record and authenticate trademarks in a particular jurisdiction. Analogously, NFTs are also publicly available; each NFT is individually recorded and authenticated on a public blockchain. Whether duplicating this process through government intervention would confer some additional benefit on individual NFT owners or the public generally is an open question. Infringement protection. While preventing infringement is central to why individuals and businesses register trademarks, this notion is essentially incompatible with NFTs. In a literal sense, nothing prevents a non-owner of an NFT from copying, using, viewing, or downloading the video or image file for which an NFT signifies ownership, nor does the sale of an the NFT claim to come with these protections. As such, there is little merit to the notion of registering a trademark for an NFT for infringement protection. Presumption of ownership. Of the benefits of trademark registration, the presumption of ownership is perhaps the most applicable to NFT ownership. Given the quasi-anonymous nature of NFT ownership, there could be some merit to registering an NFT as a trademark. Doing so would formally document the ownership of an NFT with a governmental entity. This formal registration and concurrent de-anonymization of the NFT ownership would streamline the legal process with respect to the distribution of the owner's assets, particularly during probate. Other considerations. Another consideration in the context of NFTs and trademark registration is the time scale of the process. The buying and selling of NFTs reflects an immediate transfer of ownership. As soon as the digital asset is transferred, that transfer is viewable on the publicly available blockchain, essentially without delay. Conversely, the process of registering a trademark with a governmental entity can be time consuming. Not only does it take the registrant time to 58 “Why Register Your Trademark?,” U.S. Patent and Trademark Office (U.S. Department of Commerce, March 31, 2021). 21RM009 • LSO RESEARCH AND EVALUATION DIVISION • 200 W. 24th Street • Cheyenne, Wyoming 82002 TELEPHONE 307-777-7881 • EMAIL lso@wyoleg.gov • WEBSITE www.wyoleg.govPDF Image | NON-FUNGIBLE TOKENS (NFTS) background
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