1401.15(c) Virtual Services
The term "virtual" is defined as "being on or simulated on a computer or computer network." https://www.merriam-webster.com/dictionary/virtual (accessed February 13, 2024). Thus, virtual services include both real-world service activities that are delivered by means of a computer or the internet and simulations of real activities that take place in virtual worlds or virtual environments.
The Nice Classification General Remarks were revised under Nice 12-2024 to provide the following classification guidance pertinent to virtual services:
The means by which a service is rendered in principle does not have any impact on the classification of the services. For example, financial consultancy is classified in Cl. 36 whether the services are rendered in person, by telephone, online, or in a virtual environment. However, this remark does not apply if the purpose or result of a service changes due to its means or place of delivery. This is the case, for example, when certain services are rendered in a virtual environment. For instance, transport services belonging to Cl. 39 involve the moving of goods or people from one physical place to another. However, in a virtual environment, these services do not have the same purpose or result and must be clarified for appropriate classification, e.g., simulated travel services provided in virtual environments for entertainment purposes (Cl. 41).
See TMEP §1401.02(a) and §1401.05 for information regarding the General Remarks of the Nice Classification. Consequently, virtual services are classified according to the nature of the services and their relation to the real world, that is, whether the virtual services have the same purpose or result as the real activity in the real world.
Virtual services include real-world services provided online, in virtual environments, or virtual worlds. They are classified in the same class as the real-world services when the virtual services have the same purpose or result as the services in the real world. For example, online banking services rendered in virtual environments provide the same result to customers as banking services in physical banks. The virtual environment is merely the means by which the banking services are provided. Thus, both "banking services" and "online banking services rendered in virtual environments" are classified in Class 36.
Virtual services also include services that merely simulate real-world services in virtual environments. If the virtual service simulates a real-world service and has the same result or purpose as its real-world counterpart, then the virtual and real-world services are classified in the same class. For example, "simulated live musical performances by avatars in virtual worlds for entertainment purposes" is classified in the same class as the real-world services of live performances by a musical group, i.e., Class 41. Both the real-world and simulated musical performances have the same purpose or result of providing music for entertainment purposes.
In some cases, a virtual service that simulates a real-world service has a different purpose or result from its real-world counterpart. For example, simulated restaurant services provided in virtual environments for entertainment purposes feature images of simulated food and beverages that cannot be consumed. Thus, the purpose or result of the simulated restaurant services differs from real-world restaurants where food may be consumed. "Simulated restaurant services provided in virtual environments for entertainment purposes" is classified in Class 41 as an entertainment service, while "restaurant services" is classified in Class 43.
If a virtual service simulates a real-world service, but has a different purpose or result from its real-world counterpart, the virtual service is typically a Class 41 entertainment service. Therefore, such identifications must generally indicate (1) the nature of the activity, (2) that the activity is a simulation, and (3) that the services are rendered in virtual environments or in a virtual world for entertainment purposes. For example, "simulated hair cutting services for avatars provided in virtual environments for entertainment purposes" is an acceptable identification in Class 41. While hair cutting services in the real-world are classified in Class 44, the virtual services are entertainment services.
Identifications for simulations of real-world services in virtual environments that are rendered for a non-entertainment purpose must be carefully evaluated to confirm they meet the criteria for services under TMEP §1301.01. For example, a company promoting the sale of its own services is doing so for its own benefit rather than rendering a service for others. See TMEP §1301.01(a)(ii). Thus, if a virtual activity merely advertises applicant’s own services, it may not constitute a service under the Trademark Act. For additional information, see TMEP §§1301.01-1301.01(b)(vi).
For additional guidance on identifying virtual services, consult the ID Manual.