Blockchain and intellectual property

A blockchain (chaîne de blocs) is a distributed digital ledger, maintained by a network of participants and organised so as to make it very difficult to alter past entries. It is relevant to intellectual property in three ways: as subject matter for protection, as a tool for evidence and rights management, and as a vehicle for new forms of infringement. No specific legislation governs its intellectual property regime, and the general rules apply. Regulation (EU) 2023/1114 on markets in crypto-assets governs certain tokens, but in principle excludes unique and non-fungible crypto-assets.

Protection of blockchain technologies

Protocols, consensus mechanisms and applications based on a blockchain fall under the regime of computer-implemented inventions. They are patentable only if they make a technical contribution, for example in terms of security, processing speed or resource consumption, and not if they merely implement a financial or business method. The code is protected by copyright. Much of the ecosystem relies on open source licences, the terms of which bind those who reuse or modify the code.

Blockchain as a rights management tool

Recording the hash of a file in a blockchain makes it possible to establish the date on which a work or document existed, which makes it a time-stamping tool whose probative value remains a matter for the court’s assessment. So-called smart contracts, programs that automatically trigger a transaction when certain conditions are met, may be used to distribute royalties or manage licences. They are not in themselves contracts within the meaning of the French Civil Code, but means of performing an agreement whose validity remains subject to the general law.

Infringement and litigation

Non-fungible tokens linked to works or distinctive signs have given rise to new forms of infringement, in particular the sale of tokens reproducing a work or a trade mark without authorisation. Offices have adapted their practice, virtual goods now falling within Class 9 of the Nice Classification, which requires the specifications of filings to be reviewed. The immutability of the ledger makes it difficult to enforce a removal order, so that measures in practice target the exchange platforms and intermediaries that provide access to the tokens. Identifying the perpetrators, who are often pseudonymous, is the main evidential difficulty.

Key points

Blockchain does not create a new intellectual property regime, but it shifts the questions of protection, evidence and enforcement. Related inventions are patentable only by virtue of their technical contribution, and recording on a blockchain is one means of proof among others. Trade mark filings should be checked to ensure they cover virtual goods, token exchange platforms monitored and the self-executing program kept distinct from the legal agreement it implements.

---

This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

Intellectual property attorney · Tell us about your situation