Apples and Oranges: Drawing the Intellectual Property Boundaries of (Digital) Cash

The fintech revolution is reshaping finance in various ways by cutting costs, improving the quality of financial services and creating a more diverse, and hence stable, credit landscape. It is also raising various regulatory challenges in relation to new products and services such as mobile banking apps, peer-to-peer lending, cryptoassets and roboadvisors. 

Intellectual property law has been instrumental in promoting and consolidating these changes, with fintech companies seeking legal protection of rights over inventions and features of the brand against falsifiers and copiers. In particular, the number of trade mark applications in relation to cryptoassets has significantly grown in recent years (together with a wave of trade mark infringement lawsuits), often as a way to protect unique product names in a rapidly saturating market.

This pattern seems to be intensifying in relation to a burgeoning class of privately issued digital assets called stablecoins. Unlike highly volatile cryptocurrencies such as Bitcoin, stablecoins effectively cater to investors’ demand for alternative means of payment (and store of value) oriented around new private forms of money where each coin is supposed to be backed with safe assets, combining the benefits of blockchain technology with the stability of traditional currencies.  

Meanwhile, central banks, driven by varying policy objectives, are exploring the potential for issuing central bank digital currencies (CBDCs). In their retail design, CBDCs are a digital version of cash which ultimately aim to extend access to central banks’ reserves to everybody, either by allowing the public to hold accounts with the central bank (account-based CBDC) or holding central bank money in privately issued wallets (token-based CBDC).  

Even if functional similarities exist between stablecoins and CBDCs, basic differences remain. While CBDCs intend primarily to achieve public good objectives, such as safeguarding public trust in money, maintaining price stability and ensuring safe, inclusive and resilient payment systems and infrastructure, stablecoins are built on private innovative technology aimed at facilitating faster, cheaper and more efficient payments both domestically and cross-border. As they aspire to be used as a form of circulating private money, stablecoins are responsive to a business agenda that prioritises profits through the charging of redemption and issuance fees. More fundamentally, their use entails a credit risk which is significantly different from the case of public money. While private money implies the liability of a profit-seeking financial institution, central bank money is backed by the full faith and trust in the government that issued it. 

That said, contrary to the case of stablecoins, central banks have so far shown little appetite for selecting CBDCs’ official names and registering them as trade marks. As a consequence, and notwithstanding the persistent uncertainty around whether CBDCs will ever be deployed, some private issuers of stablecoins have started registering trade marks using terms close to the ones which will likely be adopted to identify CBDCs. The economic opportunity is to gain a first mover advantage based somewhat on the association of the issued product(s) with a digital manifestation of the national currency. 

Against this background, I have recently published an article (‘Apples and Oranges: Drawing the Intellectual Property Boundaries of (Digital) Cash’ (2026) 28 NZBLQ 153, available here) that highlights possible circumstances when the registration of trade marks associated with stablecoins might be a source of confusion and uncertainty, hence blurring the perception of the divide between private and public money. 

Existing concerns on the nature and reliability of stablecoins are exacerbated when they are promoted using terms or acronyms which can be linked to the existing monetary unit of a country, as that connection could create a reputational risk to the national currency or, at the very least, a risk of confusion or mis-selling. More fundamentally, stablecoins with names or labels that sound ‘official’ could be confused with money such as bank deposits—cash denominated in the monetary unit of the state—potentially undermining trust in central bank money and its function as an effective value anchor with the characteristics of a ‘public good’. That said, although the risk of trade mark registration of stablecoins using a term that plainly replicates that of the national unit of currency of a state is probably negligible (and likely not registrable as ‘devoid of any distinctive character’), the consequences could become significant in relation to a digital currency that has yet to be issued. In that case, there would be no immediate reference to an existing product. In the absence of trade mark registration for prospective digital cash, issuers of stablecoins could have a plain incentive to engage in the name guessing exercise, trying to register trade marks with terms close to the ones which will possibly be adopted to identify CBDCs. The costs of this exercise would be limited, and the benefit of positioning names of financial products which are not distant from a likely official CBDC term could be significant. Without express breach of any existing legislation, and in the absence of conflicting registered trade marks, the probability that the adopted term for stablecoins would be regarded as generic is very low.

This scenario is not purely theoretical, as I explain in the article with reference to trade mark registrations relating to crypto products issued in New Zealand. From May to August 2023, there have been five applications for trade mark registrations filed in New Zealand which adopted the term ‘NZ dollar’ together with words like ‘digital’ or ‘electronic’ (or other acronyms which can be associated with the existing monetary unit of New Zealand) as a sign, design or expression to identify financial products or services. This was up from four applications over the previous two years. Presumably, if this trend continues, other candidates ‘likely to deceive or cause confusion’ to the public under the existing trade mark legislation could soon materialise. The obvious cases would be those containing a title or acronym referring to ‘Central Bank’ or ‘Reserve Bank’ alongside a word or words used to describe money and the form it might be issued in, especially when registered under trade mark class 36 (ie a class that covers insurance, financial affairs, monetary affairs, and real estate affairs as part of the international Nice Classification system used by the Intellectual Property Office of New Zealand). These might include ‘dollar’, ‘cash’ or ‘currency’, accompanied by the adjective ‘digital’ or ‘electronic’, for example.

Once it is accepted that these concerns about trade mark registrations are material, the issue becomes how to handle them under the prevailing public interest in order to constrain the development of speculative practices while preserving support in innovation and entrepreneurship in the crypto industry. I suggest in the article that whenever acronyms adopted in the same class of trade marks are found to be overly similar to existing official products (or products likely to be issued on the basis of publicly available information) which relate to the national currency of New Zealand, the task for the Commissioner of Trade Marks to recognise that their use could deceive or cause confusion among the general public should be straightforward. The registration of the ‘NZDD’ trade mark in New Zealand provides a test case to discuss a (quasi) official acronym for the New Zealand digital dollar in some depth.

The author’s article is available at SSRN.

Matteo Solinas is an Associate Professor in the School of Private and Commercial Law, UNSW Sydney.