A Nifty (or NFTy) is a common term for unique digital assets recorded on blockchains. These assets are popular in the blockchain art and collectible communities, and can be described technically as non-fungible tokens or NFTs.
In July of 2018, Dapper Labs Inc., the creator of popular CryptoKitties NFT project on the Ethereum blockchain, applied to the United States Patent and Trademark Office and the Canadian Intellectual Property Office to trademark the term "NIFTY" for use with products and services related to a variety of electronic uses, including:
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downloadable computer software to enable consumers and businesses to interact with other software, digital assets, digital apparel, cryptocurrency, online services, and databases;
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computer application software for mobile phones, portable media players, and computers that is used to enable users to hold cryptocurrency via electronic wallets;
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computer software to create and manage electronic wallets for holding cryptocurrency;
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application software, namely, software for sending, receiving, buying, selling and storing cryptocurrency;
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software for use in accessing, reading, tracking, and using blockchain technology, cryptocurrency, digital assets, and digital apparel;
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software for facilitating a cryptocurrency transaction
(the list of covered products and services is really long, review the trademark application for full details)
In August of 2018, it came to light within the blockchain community that Dapper Labs Inc. had filed a trademark application for exclusive rights to use the term "Nifty". The blockchain community - which relies heavily on open-source software and community contributions - was upset that Dapper Labs Inc.'s was attempting to seize control of the term Nifty from the open-source community that spawned it.
You can read more about the community's reaction on Yalda Mousavinia's @Medium post (when you read about Dapper Labs Inc's response, keep in mind that a trademark must be policed and defended from infringement to remain valid).
Based on the US trademark application case history, it appears that Dapper Labs Inc. chose not to respond to a non-final action from the USPTO examiner sent on November 14, 2018. Dapper Labs Inc.'s application to trademark the word "Nifty" in the United States was formally marked as abandoned for failure to respond on June 14, 2019.
See Dapper Labs Inc's US trademark application details and history on the USPTO website.
Based on Canadian trademark application case history, it appears that Dapper Labs Inc. has not withdrawn its application to trademark "Nifty" in Canada. The trademark examiner's first report was issued on June 18, 2020. On February 22, 2021, notices were sent under section 37(3) of the Canadian Trademarks Act to owners of similar trademarks advising them of the Dapper Labs Inc. trademark application.
The next significant step in the Canadian trademark process will be for the Canadian Intellectual Property Office to advertise the Nifty trademark, at which point other trademark holders and members of the public can file a formal opposition to registration of Dapper Labs Inc's trademark of "Nifty".
If Dapper Labs Inc. does not withdraw its application, if no opposition is filed, or if opposition is filed without success, it can be expected that Dapper Labs Inc. will obtain a trademark for the term "Nifty" within Canada.
See Dapper Labs Inc's Canadian trademark application details and history on the CIPO website.
Once a trademark for "Nifty" is granted, Dapper Labs Inc. will need to police use of the term "Nifty" within Canada for any commercial purpose related to the categories of products and services identified (ie. NFTs, blockchain, digital assets, apps, etc). Dapper Labs Inc. is a dominant developer within the blockchain ecosystem and it will need to enforce its presumptive statutory rights to preserve any 'Nifty' trademark - even where others have entrenched common law rights of usage.
This may have a significant impact on the blockchain communities within Canada, and for commercial non-fungible token services in other countries that serve Canada. It can be difficult to restrict the use of blockchain based products and services in specific regions given the distributed and borderless nature of the technology.
Given the small size and technical nature of the blockchain digital asset communities, there is a real risk that trademark examiners in Canada, the United States and other jurisdictions will fail to understand that the term "Nifty" is ubiquitous within the digital blockchain asset marketplace. The term "Nifty" is not distinctive. It is not associated with any single commercial entity. It is utilitarian in nature.
Granting a trademark for the term "Nifty" alone - and without further commercial context (such as the trademark registered for 'Nifty Gateway') - may harm consumers and the marketplace, have chilling effect on lawful activity and result in the theft of a common good.
Page last updated March 19, 2021. Spot any errors? Missing information? Something out of date? Please submit suggested revisions via Github.