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Comments on USPTO, Copyright Study Provides Insight into NFTs

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The U.S. Patent and Trademark Office (“USPTO”) and the Copyright Office announced late last year that they would seek comments in connection with a joint study of “intellectual property law and policy issues associated with non-fungible tokens (‘NFTs’).” The Offices called on relevant entities to shed light on “the current and potential future uses of NFTs in your field or industry, including the types of assets associated with NFTs (e.g., digital assets, physical goods, services).” They also asked stakeholders to “describe any IP-related impacts those in your field or industry have experienced in connection with actual or intended uses of NFTs” and to discuss the extent to which “current IP laws [are] adequate to address the protection and enforcement of IP in the context of NFTs.”

After extending the deadline for comment by a month early this year, the USPTO and Copyright Office received an array of responses reflecting various’ organizations and individual attorneys’ views on NFTs – and blockchain more broadly – and the opportunities and challenges at play. After combing all of the responses, here are (some of) what I think are the most important takeaways … 

Important Opportunities & Impacts

Primarily, many commenters address the impact of NFTs for companies across industries. In a comment submitted in February, Sheppard Mullin partner James Gatto, who co-leads the firm’s blockchain and fintech practice, states that “blockchain will be more impactful than the internet, and using NFTs and related technologies will cause tokenization of all types of physical and digital assets and other entitlements.” The International Trademark Association (“INTA”) echoes this sentiment, stating that “the potential future reach of NFTs is vast, building upon the uses already seen in the marketplace.” For instance, “Future digital assets – including artwork versions of well-known brands and brand products – can be expected as brands seek to find new ways to interact with consumers in the physical and digital worlds.”

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