Can trademarks fight unauthorized NFTs?

(Paris) Against the backdrop of the growing popularity of “NFTs,” these digital files are being sold in the form of unique certified tokens, and brands and artists are battling over copyright and counterfeiting issues, with huge amounts of money at stake.

Posted on February 4th

Eric Randolph
France media agency

The American brand, sparked by the unauthorized NFT marketing of Nike sneakers, filed a complaint Thursday in New York against online trading platform StockX, seeking damages.

Last month, luxury group Hermes also sued artist Mason Rothschild, who sold 100 MetaBirkins, NFT labels featuring the House’s iconic bag, raising tens of thousands of dollars.

Can these complaints work?

At this point, it’s still not clear if brands can win the battle, particularly in the case of Hermès, says creative industries attorney Annabelle Guberti.

To defend Meta Perkins, Mason Rothschild relies on the First Amendment to the US Constitution, which guarantees freedom of speech and protects artists before the country’s courts.

argument” fair use ’, which grants copyright exceptions in the case of parodies, for example, often wins the case in US or British courts, adds Ms.And Guberti.

However, she considers that Mr. Rothschild will find it difficult to convince a judge of the artistic merit of his work.

The message that carries [Mason Rothschild] It is not easy to understand, other than the desire to collect large sums of money. His legal team will be doing a lot of work.

Annabelle Guberti, creative industries lawyer

The dispute between Nike and StockX sounds like a more classic business dispute, with the e-commerce platform never claiming that NFTs were works of art. It remains to be seen how trademark law can be digitalised.

Which system for NFTs?

In a response to Hermès posted on Twitter, Rothschild compared “MetaBirkins” to Andy Warhol’s famous painting of Campbell’s soup cans.

The fact that I sell art using NFTs does not change the fact that it is art.

Mason Rothschild

Edward Lee, who directs a program on intellectual property at Chicago-Kent Law School, disagrees with this comparison. In an article published on Bloomberg Law, he explained that the Campbell Soup brand had never expressed a desire to start selling artwork, while Hermès might one day decide to create its own NFT.

The fact that no physical act is exchanged during these transactions.” Non-Fungible Code (“irreplaceable tokens”) further complicate the possibilities of regulation.

Primavera de Filippi, co-author of the book confirms Blockchain and the Lawin the magazine fashion business.

Can brands protect themselves?

Hermès asked artist Mason Rothschild to destroy his “MetaBirkins”, which platform NFT OpenSea agreed to withdraw from sale.

“Even if the brands win their lawsuits, how will they sue a consumer who has already bought an NFT, or prevent them from reselling it at auction? In terms of application, digital is the Wild West,” nuance but M.And Guberti.

According to her, brands should fight back by creating their own official NFTs. That’s what Nike did by acquiring RTFKT in December, a company that specializes in designing virtual running shoes.

“Attack is the best defense,” notes the master.And Guberti. “But for now, these brands are still cautious [à l’idée de créer leurs NFT], because the heart of their business remains the physical products, and they’re still noticing if the metaverse really takes off. »

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