NFTs, these unique digital things, are on the rise. Trademarks take the role of NFT (non-fungible token) or non-fungible tokens, i.e. non-fungible. With NFTs, they offer a digital resurgence of their own products or digital objects inspired by their world. Gucci, for example, is particularly active and has just released a new series of NFTs.
A trial to follow between Hermes and Mason Rothschild
However, these initial non-financial rules raise several legal issues regarding ownership, copyright and trademark law that remain unresolved. This is evidenced by the ongoing lawsuit between luxury house Hermès and Mason Rothschild, who presents himself as a digital artist and has marketed the bags under the Meta Birkin brand in the form of NFT, the Birkin brand very well known in Hermès.
This is an opportunity to look at the exact nature of NFT. Is it a separate object? Is it a work protected by copyright and trademark law, a title deed or a certificate of authenticity, or a simple line of code and a link to a work or testimonial? This is the topic that Arnaud Fournier, jurist and founder of Consultantitrust, made clear during the event” NFT and luxury brands Organized by Adetem on July 7.
” There are 3 types of NFT in my opinion. This has a huge impact on copyright and trademarks Arnaud Fournier presents. ” The first type of NFT is the type created directly in the blockchain continued. ” It consumes a lot of electricity and takes time. But this is a real innovation in the blockchain. But it is believed that it is not worth creating a business directly in the blockchain. This type of NFT is extremely rare He begins.
” The second type of NFT is the type in which the ownership rights to the work are either part of the NFT or the NFT itself. resume.
NFT is a smart contract in the case of Cryptopunks
One can use NFT as a method of transferring ownership with every sale. ” This is the case for example from Cryptopunkswhere the NFT is a smart contract that gives ownership of the work “Show. But for Arnaud Fournier, this type of contract is not evidence of primary ownership. ” You can take any business from the NFT marketplace and declare that you own it and create your own smart contract in that business He explains.
” Content creators don’t make much use of this option because they want to keep the copyright in their work. Thus they can create other NFTs from the same work Announces. The third type of NFT is the best known and most widely used. ” NFT is created from a work, photo, or photo. We just create an icon pointing to this image and we don’t then create an object. These NFT certificates are certificates of authenticity but are different from the object itself He presents.
This is the kind of NFT that we find for example in the lawsuit between Hermès and Mason Rotschild. ” If we take the example of the Meta Birkin bag, then Mason Rotschild is on trial with Hermès. NFTs are simple symbols that refer to a digital image. NFT is not an image. It is not like a plate. It is a certificate of authenticity of the painting. I can sell you the painting’s certificate of authenticity and remain the owner of the painting. This poses problems for copyright and trademark Arnaud Fournier warns.
Companies are confused when it comes to protecting themselves from NFTs hackers
It should be noted that the development of NFTs is against trademark law. Usually, a company registers a trademark for a class of products. ” Aubade brand can be registered for bra and other bathroom company The director explains. However, companies currently do not know how to register their trademark when it comes to NFT.
Companies tend to expand the categories in which they advertise their brand, in order to protect themselves. ” Thus, they choose Class 9 (Downloadable Virtual Goods), Class 35 (Virtual Goods Retail Services), Class 41 (Entertainment Services that provide non-downloadable virtual goods for use in a virtual environment) and also refer to Classes 40, 42 and 45, thus They pay more Arnaud Fournier explains.
However, an artist can use a well-known mark to create a work of art. ” It’s called fair use He says. ” Mason Rotschild says he made NFTs and they are works of art The lawyer continues. ” But when he promoted his NFTs, he used the Hermès and Birkin brand. Therefore, his argument must not stand up in defense “Does he believe?” His second line of defense is that it’s just an NFT, i.e. just a line of code and not a fake briefcase, and that Hermès registered his mark in a briefcase. Arnaud Fournier continues.
In the case of Hermès, the sale relates to a line of code
this means, ” When the brand is known, it covers all product categories but Mason Rotschild only sells one line of code. For rigging, there must be a class “Line of Code” Flirting. In the end, we will have to consider the details of the judgment that will be issued between Hermes and Mason Rothschild. ” I think Hermès will lose, even if it risks winning in an aspect like diluting the brand. Mason Rotstchild will be accused of using the Birkin brand, but it’s not a fake Concludes.
A Wired article from last March addresses the same questions. It describes NFTs as typically containing links to an asset hosted elsewhere. NFT does not transfer the copyright ownership, storage or use of the original itself. When someone buys an NFT, they have just paid for their e-wallet address to be copied into a database along with a pointer to something.
Another point, the Ethereum blockchain which is often used to register NFTs does not differentiate between holding a token and owning it. You can own a scooter but not own it. But in the blockchain, whoever holds a token becomes its owner. Furthermore, NFT is only unique to the blockchain where it was created. The same digital object can be registered in many blockchains. Additionally, one can copy existing NFTs and sell them on the same blockchain or create NFTs from existing artwork whose creator does not want to create an NFT. In fact, the blockchain does not verify that the person who created the NFT has the right to do so.
Basic information on this topic