On 13 September 2023, the Fourth Board of Appeal of the European Intellectual Property Office rejected the application for registration of a figurative representation of a virtual firearm, holding that it lacked distinctive character. According to the Board, the distinctive character must indeed be assessed in relation to the goods and services applied for and the perception of the relevant public. Regarding the relevant public, the Board held that the relevant consumers for the goods and services in question (i.e. virtual services providing online virtual firearms for virtual use) may not necessarily be experts in (virtual) weapons, considered that virtual products are widely and easily accessible. The level of attention of such consumers therefore would be average to high. As for the distinctive character, the Board noted that the mark is a representation of a common weapon and contains all the essential elements which ordinary consumers might expect from a virtual firearm while, on the other hand, any verbal element contained in the mark is completely negligible in the context of the sign. This decision provides a first useful insight into EUIPO's future assessments on applications for virtual goods and services, clarifying that even though a product or service may be more niche in "real life", such as firearms, the relevant public of the virtual product or service is likely to be wider and with a lower level of attention.
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