A Quiet Trademark Update That Could Complicate Your Next Filing
Nobody announces the Nice Classification updates at conferences. There is no press release. Or, at least one that I’m aware of. The 13th edition of the International Classification of Goods and Services took effect January 1, 2026, and most trademark applicants — and more than a few practitioners relying on template language they have not refreshed, have no idea the ground shifted.
It shifted in ways that will produce avoidable office actions if you are filing applications for digital goods, software, eyewear, or anything touching NFTs or virtual products. Here is what you need to know before your next filing.
How This Affects Applicants Right Now
The most immediate practical problem is wrong-class filings. The USPTO applies the current edition of the Nice Classification to applications as filed. If your identification language does not conform to the 2026 edition, you will receive an office action — potentially multiple — requiring amendment. That costs time, money, and occasionally scope, because narrowing an identification to fix a classification error can narrow your protection in ways you did not intend.
Three categories of applicants face the most direct exposure.
First, eyewear brands. Spectacles, sunglasses, and contact lenses have been moved from Class 9 to Class 10. Any new application for an eyewear brand that files in Class 9 after January 1, 2026 will face rejection on that basis. Existing registrations are unaffected, but portfolio extensions and new filings need to reflect the change.
Second, anyone pursuing international registrations through the Madrid Protocol. Madrid uses the Nice Classification directly, and national offices will reject identifications that do not conform to the 2026 edition. Filing through Madrid with pre-2026 template language invites office actions in every designated country simultaneously.
Third, practices that have not updated their filing templates. The identification of goods and services is one of those things attorneys often draft from prior filings. If the prior filing predates January 1, 2026, the template language may now be outdated.
What Changed in Class 9
Class 9 absorbed most of the digital and virtual product expansion over the last decade, and the 2026 updates formalize what had been an inconsistent patchwork of acceptable language.
The changes most likely to matter in practice: virtual goods identifications now require specificity. "Virtual goods" alone is not acceptable. You need "downloadable virtual goods, namely clothing" or the equivalent. The same logic applies to software for crypto asset transactions and downloadable cryptographic keys — both are now specifically enumerated, which means there is now a correct way and a wrong way to identify them.
The NFT Section, and Why It Already Feels Dated
The 2026 edition formally recognizes "downloadable digital files authenticated by non-fungible tokens" as an acceptable Class 9 identification. For brand owners who spent the NFT boom years trying to figure out where those assets belonged in a classification system that had no category for them, this is useful — if belated — clarity.
The caveat: "NFT" or "non-fungible tokens" alone remains unacceptable. The NFT is treated as a certificate of authentication, not a product category in itself. Applicants must specify what the NFT authenticates — "downloadable digital art authenticated by non-fungible tokens," not simply "NFTs." The token is the wrapper; the identification must describe what is inside it.
One cannot help noticing that WIPO has formalized NFT classifications at roughly the moment the NFT market has contracted from its 2021–2022 highs and generative AI has become the dominant conversation in digital asset protection. The classification system is not wrong to address NFTs — the questions are real and the old ambiguity caused genuine problems — but the timing carries a hint of regulatory lag. If the next update arrives in 2028 with careful language about AI-generated works and training data, the pattern will be confirmed. Trademark classification tends to stabilize categories shortly after the moment when everyone was arguing about them.
That said, the rules are the rules, and applicants with NFT-linked products still need to use the compliant language.
The Short Version
Audit your filing templates. If you are filing for eyewear, move it to Class 10. If you are filing for virtual goods or NFT-authenticated digital files, make sure your identification is specific. If you are extending an international portfolio through Madrid, confirm your goods and services language against the 2026 edition before you file.
The update is quiet. The office actions it will generate are not.
Jonathan Phillips is an intellectual property attorney handling trademark registrations and enforcement in across the U.S. and internationally. His trademark prosecution and portfolio management is provided to clients across a range of industries and across the world. This article is for informational purposes only and does not constitute legal advice. Contact him Here.