NFTs—or non-fungible tokens—have been making headlines in recent months as the newest investment craze. “At a very high level, most NFTs are part of the Ethereum blockchain. Ethereum is a cryptocurrency, like bitcoin or dogecoin, but its blockchain also supports these NFTs, which store extra information that makes them work differently from, say, an ETH coin.” NFTs can be anything digital but are currently extremely popular for buying and selling digital art. Popular NFT marketplaces include OpenSea, Rarible, and Nifty Gateway, and some NFTs have been bought and sold for tens of millions of dollars.
This new digital artwork platform has, unsurprisingly, sparked many intellectual property disputes. Most recently, famous fashion brands Nike and Hermès filed NFT-related lawsuits, alleging their brands were appropriated on the NFT marketplace. Nike sued the online resale platform StockX for selling digital images of Nike shoes and promising purchasers they could redeem the NFTs for physical versions of the shoes at a later date. Similarly, Hermès sued artist and NFT creator Mason Rothschild for selling “digital dupes of the Birkin, which depict fur-covered bags shaped like the iconic totes,” the first of which sold in December for $42,000. Rothschild is attempting to defend his creations as “art works that depict imaginary, fur-covered Birkin bags,” protected by the First Amendment, likening them to Andy Warhol’s famous painting from the early 1960s, Campbell’s Soup Cans. Whether these lawsuits will be successful remains to be seen, as the application of trademark law to NFTs is likely a matter of first impression for the courts.
The introduction of new technology often results in corresponding civil litigation as disputes regarding novel issues arise, such as the application of trademark law to NFTs. While the attorneys at Lindley Law typically do not handle intellectual property disputes, we do our best to stay up to date on emerging legal issues and have significant experience litigating a variety of other civil litigation matters. If you need assistance maintaining or defending a civil lawsuit, please give us a call at 704‑457‑1010 to see how we may be able to help you. For more information regarding our firm, attorneys, and practice areas, please visit our website here.