https://blocklr.com/guides/utility-tokens/
Utility tokens are cryptocurrency that represents access to a product or service, hence their name. While holding this type of cryptocurrency, this investor often has access to special deals within a company that they might get at a heftier price or not be able to access at all without it.
The SEC, or US Securities and Exchange Commission, only restricts investment on tokens that pass the Howey Test, meaning that they meet the following criteria:
It is an investment of money. The investor invested because they expect a profit. The investment is a common enterprise. This means that the investor will only make money based on the actions of the investment issuer. Profits rely on the work of a third party.
How can FFF utility tokens be used?
This is all based on German law…
Utility tokens[110] are a type of digital voucher for goods or services.[111] The issuer pledges a service or delivery of goods when redeeming the token.
Utility tokens as a type of voucher are not comparable to the securities listed by way of example in sec. 2 no. 1 WpPG or sec. 2 (1) WpHG.[119] The incomparability with stocks and bonds is apparent. Moreover, the utility token does not reflect a claim for money against the issuer.[120] It serves as a voucher that can be redeemed for goods or services. Therefore, its negotiability on the crypto exchanges corresponds to the trading with goods and not with a security. The Capital Market Law’s disclosure guidelines serve the investment decision, but not the decision on usage or consumption.[121] The example catalogue in sec. 2 (1) WpHG or sec. 2 no. 1 WpPG disclosed for the definition of securities serves the classification of financial innovations.[122] It is supposed to make the law sustainable and provide a broader definition of securities, but it should not lead to the capital market regulation encroaching into the field of goods and services exchange or the general consumer protection
A utility token, having (advertised) profit expectations when sold on the secondary market is not comparable to these types. It does not grant a membership right or a similar economic situation and does not substantiate a monetary claim, it only grants a voucher-like right to non-monetary services. The expected profit does not come from the issuer, but can only be paid by third parties outside the issuer’s area of accountability.
Non-monetary services
A utility token that does not promise interests, profit sharing or other compensation, is therefore not considered an investment. As the catch-all elements of the VermAnlG do not include utility tokens, the latter is excluded from the prospectus law. A real utility token is structured in a way that it is not covered by the Capital Market Law.