NFTs: New Frontiers For Trademarks

Intellectual property owners need to add the metaverse to places to watch for possible infringement, specifically, trademark or copyright infringement in the form of NFTs or non-fungible tokens. This is highlighted in the case of Hermès International v. Mason Rothschild, currently pending in federal district court in New York. In this case, Hermès claims that NFTs called METABIRKINS—which allude to the Hermès iconic (and trademarked) BIRKIN^® handbag—infringe and dilute Hermès trademarks.

NFTs are unique tokens based on blockchain technology and used as digital assets. Unlike cryptocurrency tokens such as Bitcoin, which are fungible, NFTs are digitally unique—no two NFTs are alike. NFTs can be based on three-dimensional items or artwork, or can be purely digital creations—for example, a collectable digital sneaker or a token used in a videogame. Most NFTs are protected under US Copyright Law as creative works and/or may be derivative works based on pre-existing