Interest in the last year in all things cryto, particularly Bitcoin, has left many people excited, frustrated, elated, and probably more than anything, confused. As a IP attorney I am not going to opine on the financial aspects of Bitcoin (e.g., security/commodity/growth/value), and will focus instead on the underlying technology and how it relates to intellectual property. First, let’s discuss how blockchain technology works and how it’s related to cryptocurrencies, and bitcoin in particular.
 
Cryptocurrencies are digital systems usable as forms of payment for transactions. They can be created by a sovereign state, such as the (likely) future U.S. digital dollar to be issued by the U.S. Government and backed by the current analog U.S. dollar. Cryptocurrencies can also be created by corporations like Chase Bank or Macy’s to be controlled by their creators and used by their customers. Alternatively, they can be independent, such as Bitcoin and Ethereum, and operate in a decentralized manner.
 
Blockchain technology, in a very simplified form, is a system for maintaining a digital registry or ledger of a series of transactions. The ledger is maintained in time stamped blocks that are built upon over time to ensure the accuracy and security of the underlying information. Blockchain technology as used in cryptocurrencies acts as a form of quasi-software enabled accounting and verification system. Bitcoin in particular has extremely complex verification criteria that enable its heightened security. Bitcoin also has a built-in scarcity that limits the total amount of Bitcoin that can be mined and the amount of Bitcoin that can be mined at successive periods (e.g., the amount of Bitcoin mineable per period decreases over time). Other cryptocurrencies, such as Ethereum, Solana, Litecoin, Ripple and Dogecoin employ different types of blockchain that provide different transactional functionality. These alternative coins (“alt-coins”) also have different growth potentials either in total coins available or the total period of time, if any, over which they can be mined. Stablecoins are another form of cryptocurrency whose value is pegged to another asset such as the U.S. dollar or gold. Stable coins are theoretically less susceptible to the value fluctuations currently seen in crypto-coins such as Bitcoin, Ethereum or Dogecoin.    
 
So how does blockchain technology and specifically, Bitcoin fit into the IP world? Bitcoin is likely not protectable by U.S. patent law since the particular blockchain technology that enables it has been known by the public since 2008. What is known as the Bitcoin White Paper, written under the pseudonym Satoshi Nakamoto, outlines the blockchain system that maintains the Bitcoin registry. The ability of Bitcoin miners, the individuals or corporations running computers that maintain the blockchain registry, to build and maintain the registry is dependent on widespread and complete access to the blockchain methodology. These aspects of Bitcoin remove the novelty necessary for patentability. For similar reasons, Bitcoin would not be protectable under trade secret law. While it may have been possible for the pseudonymous Nakamoto to file for a Bitcoin patent back in 2008, the White Paper is now prior art that renders Bitcoin unpatentable (whether Bitcoin would be patentable subject matter under 35 U.S.C. §101 in view of Alice Corp. v. CLS Bank Int’l., 573 U.S. 208, 134 S.Ct. 2347 (2014) (“Alice”) is a discussion for another post).
 
Trademark and copyright raise separate issues for Bitcoin. There are a registered U.S. trademarks (and many abandoned applications) that use the term bitcoin either in slogans or compound names for goods and services. One bitcoin trademark application at the USPTO attempting to use the term bitcoin (by itself) on digital currency was rejected for several reasons, one of which was that the USPTO determined the term bitcoin, at least as of 2016, had become a generic name for cryptocurrencies. As discussed in a prior post, generic terms should never become trademarks (see What is a Strong Trademark?). Many government IP offices around the world have taken similar actions, although there has been much confusion around the globe over some registrations, particularly in the UK. With regard to the bitcoin logo, early versions were allegedly created by “Nakamoto”, and at least one subsequent one was released under a creative commons license. There are no U.S. registrations for these early logo marks by themselves for financial transactions. This does not mean a cryptocurrency could not have a registered word mark or logo if they fulfilled the U.S. requirements for trademark protection (particularly one issued by a corporation like Chase Bank or Macy’s), just that the term bitcoin and the original logos, have not been registered in the U.S. for financial transactions (and likely will not be).   
 
Software and computer code can also be protected by copyright law. Copyright law requires authorship and therefore only the original creator of the Bitcoin White Paper should be able to register a copyright for that White Paper. However, because copyright registrations are generally based on an affirmation from the registrant that they are the original author, and copyright offices do not independently verify this information, final adjudication of ownership is often decided by the courts. This issue is currently being fought over in the UK courts over conflicting claims as to who is Satoshi Nakamoto. The ownership and potential enforcement of the copyright to the Bitcoin code and White Paper will likely be fought over for year to come.  
 
So where does this leave blockchain in the IP world? One confluence of blockchain and IP rights can be found in NFT’s or non-fungible tokens. These are digital certificates supported by blockchain technology that establish a secure and verifiable ownership of an item of interest.  The item can be a real world analog item such as a comic book or a painting, or it can be a digital item itself, such as a text message or a digital version of a painting, photograph or video. An extremely valuable NFT would be one in which the ownership of the NFT also included the ownership of the underlying copyright in the item (think double property rights). Blockchains have also been used for tracking ownership of patent portfolios , maintaining medical records, personal identity security, and music royalty payments. While human imagination may be the only limit for the uses of blockchain, future Federal Circuit and U.S. Supreme Court cases will likely determine the extent to which patents claiming variations on blockchain can or cannot be enforceable (this will be heavily influenced by the progress of cases in line of Alice).
 
Stay tuned. Patent, trademark, and copyright crypto battles will continue over the years to come, and blockchain technology will likely be a part of everyone’s lives for the foreseeable future. If you have any questions about patents, trademarks or IP in general please contact me at [email protected] or visit my website at www.chiaraiplaw.com
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Trade dress is a form of intellectual property protection available to products and services that have a distinctive and original design and shape. Much like trademarks, trade dress is used to associate a product or service with its source. A classic example of a product with trade dress protection is the Hershey’s Kiss. The short conical pyramid of foil wrapped chocolate topped with a paper tag is an iconic representation of trade dress. Consumers readily recognize the shape and design of the Hershey’s Kiss and immediately know what the product is and who is the source of this American classic.
 
Examples of famous trade dress include the Coca-Cola glass bottle, the red tab on Levi’s Jeans, the blue of Tiffany’s packages, and the shape and color of IHOP restaurants. These products and services provide instantly recognizable designs that consumers associated with their respective brands. Trade dress for a product can be expressed in many ways, including, but not limited to the product itself (Hershey’s Kiss) or the packaging (Coca Cola glass bottle). For a service, the trade dress can be found in the decor or environment in which a service is provided, such as the blue roof of the IHOP restaurant. In fact, trade dress can be protected for sounds, flavors, colors, texture, graphics, product displays, particular business techniques, the look and feel of a website, and motion/moving images.
 
Trade dress protection exists under state common law and federal law without official registration, and many products rely on this form of protection. However, it is also possible to file for federal trade dress registration via the Lanham Act, the same piece of legislation that provides Federal Trademark protection. Trade dress applicants can file for protection in a similar manner to that of regular word marks and logo marks. As per regular trademarks, trade dress requires distinctiveness to be filed on the principal register (for an explanation of distinctiveness see my post What is a Strong Trademark). If the shape or design of the product seeking trade dress protection has not yet developed distinctiveness the application can be filed on the supplemental register, however, it is generally preferable to be on the principal register for a host of reasons (a topic for another day).
 
Because of the emphasis on shape and design there are some interesting overlaps between trade dress and design patents (for a more detailed discussion of design patents see my post What is a Design Patent). One commonality is that both forms of IP rights relate to non-functional aspects of products or services. Functionality means that the design cannot be solely or primarily functional, and the design cannot be the only form that provides a necessary function for the product. Some distinctions between these two forms of IP protection relate to distinctiveness and term. Trade dress holders must show distinctiveness for both federal registration (on the principal register) and any form of enforcement. In contrast, design patents do not require distinctiveness to be patented or enforceable. With regard to the length of protection, trade dress can potentially exist for the life time of the product, whereas design patents expire fifteen years after issuance.
 
If you are interested in seeking trade dress or a design patent for your product or service it is highly advisable to consult an experienced IP attorney to discuss your individual needs and goals. If you have any questions about trade dress, design patents, trademarks or utility patents, and would like to discuss protection and registration please contact me at [email protected] or visit my website at www.chiaraiplaw.com