Cryptocurrency is a form of currency that only exists digitally, and usually has no central issuing or regulating authority. Instead this currency uses a decentralized system to record transactions and manage the issuance of new units, and that relies on cryptography to prevent counterfeiting and fraudulent transactions.

Cryptocurrencies' relation to trademarks is becoming increasingly important as more people use them. The global cryptocurrency market size was valued at 1.49 billion dollars in 2020 and is projected to reach 4.94 billion dollars by 2030, growing at a CAGR of 12.8% from 2021 to 2030, according to the Cryptocurrency Market Outlook. Some of the factors that contribute to the continuous surge of crypto market growth are the increased use of distributed ledger technology and rising digital investments in venture capital. Blockchain technology offers decentralized, fast, transparent, and reliable ways to conduct financial transactions, which makes it easier for companies to deliver high-quality services to consumers. 

Similar to cryptocurrency, the presence of NFTs in the current digital landscape is constantly growing. Non-fungible tokens (NFTs) are cryptographic assets on a blockchain with unique identification codes and metadata that distinguish them from each other. Unlike cryptocurrencies, they cannot be traded or exchanged at equivalency. You can read more about trademark relevancy for NFT in our separate article Trademark perspective on NFTs: New, Fabled, and Thrilling.

Geographically, the cryptocurrency market is segmented across five major regions, namely, North America, Africa, Asia Pacific, Middle East and South America. Recent data indicates that people from countries in Africa, Asia and South America are consistently much more likely to own or use cryptocurrency than those in Europe or Australia. According to statistics compiled by TripleA, top5 countries for their share of cryptocurrency owners are:

  • USA (46 million) 
  • India (27 million) 
  • Pakistan (26 million) 
  • Nigeria (22 million) 
  • Vietnam (20 million)

Trademark filings for cryptocurrency

The USPTO trademark provisions explicitly cover cryptocurrency in its range of different classes of goods and service like within Class 9  (cryptocurrency hardware wallets, hardware for cryptocurrency mining, etc.), Class 36 ( financial exchange, such as cryptocurrency payment processing, cryptocurrency trading service, etc.), Class 42 (online cryptocurrency wallet, etc.).

According to intellectual property lawyer Mike Kondoudis, individuals and businesses filed more than 3,600 trademark applications for cryptocurrencies and crypto-related services with the United States Patent and Trademark Office as of Aug. 31, 2022, compared to 3,516 in all of 2021. Other countries are struggling with providing a concrete provision for cryptocurrency.

Challenges in applying Trademark Law to Cryptocurrency

The rapid growth in the popularity of cryptocurrencies and associated trademark applications however goes hand in hand with the emerging trademark issues concerning the crypto market. In order to bring cryptocurrency within the realm of IP laws, the following questions will require concrete answers.

Is cryptocurrency a type of product or service?

One of the main issues comes from the fact that trademark protection, in its traditional form, covers exclusively products and services, while cryptocurrency is merely a medium of exchange. However, while cryptocurrencies themselves can hardly be registered as products or services, the name of the coin can be trademarked as either:

  • Class 36 financial services for example: “Financial services, namely, providing a virtual currency for use by members of an online community via a global computer network” 
  • or Class 42 as a software as a service (SAAS), for example: “SAAS services featuring software for clearing, allocation, compliance, recordation and settlement of trading related to bitcoins.”

Additionally, cryptocurrency-related consulting services can be trademarked as Class 36 financial consulting services, and educational articles, videos, blogs, or lectures on the topic of cryptocurrency could be trademarked as Class 41 educational and/or entertainment services.

Can the name of a cryptocurrency be a source identifier, even if the source is unknown?

Trademarks identify a single source of origin that conflicts with the key logic behind cryptocurrencies. As cryptocurrencies are generated through blockchain technology, they are fundamentally marked by the absence of any central control or ownership. Bitcoin is a decentralized cryptocurrency and hence the controversy surrounding its trademark registration. However, where a currency is centralized, the chances of it being considered a trademark may increase since it is originated and distributed by a single known source.

Does it include creative elements to establish a certain degree of distinctiveness?

As with other forms of trademarks, the most important criterion is to ensure that the cryptocurrency trademark is distinctive. The trademark should be original and should not resemble an already registered trademark. The trademark should be distinctive, not merely descriptive.

One of the most popular examples of that is Bitcoin. In 2016, BitFlyer, Inc. applied for trademark registration of the word “BITCOIN” for use as “computer programs employed in the field of electronic commerce transactions; computer programs; electronic machines and apparatus; telecommunication machines and apparatus”, but the USPTO had denied it. The word was only descriptive of the subject matter and characteristics of the products submitted by the applicant, according to the USPTO. However, since this is up for subjective analysis, some countries have registered ‘Bitcoin’ as a legitimate trademark, like the United Kingdom Patent Office and the Spanish Patent and Trademark Office.