Intellectual Property

Trademarks in the Virtual Marketplace

April 10, 2023 | by Scarlett Sloane

A trademark’s protection can now expand to protect use of one’s trademark in digital worlds in the metaverse and within virtual reality. Hermès, a French luxury brand known for its iconic Birkin handbag, was successful in its litigation against Mason Rothschild, an NFT creator who is responsible for creating a series of 100 digital images entitled MetaBirkins.^[i] A jury awarded Hermes $133,000 after finding Mr. Rothschild infringed on the trademark of Hermès and profited “unlawfully off the goodwill of its sought-after luxury product.”^[ii] Other companies, like Miramax and Nike, have brought similar lawsuits asserting that NFT creators are infringing on the companies’ trademarks and copyrights.

Trademarks & NFTs

A trademark is a form of intellectual property that “can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.”^[iii] A trademark is used to refer to a product that identifies as goods, while a “service mark” is used for services.^[iv] A trademark is utilized to assist customers in recognizing and identifying a product in the marketplace as well as aid customers in differentiating a product from its competitors. Most importantly, a trademark also can “provide legal protection for” a brand and help guard the brand “against counterfeiting and fraud.”^[v]

Hollywood’s Elite Sued for Trademark Infringement

December 6, 2022 | by Scarlett Sloane

Any phrase, logo, design, or a combination of these elements, that describes and establishes a good or service is considered a trademark. Two very well-known stars of Hollywood, Hailey Bieber and Kim Kardashian, have recently found themselves involved in trademark infringement lawsuits. On June 15, 2022, Mrs. Hailey Bieber produced and launched a line of skincare products entitled Rhode.^[i] Ms. Kim Kardashian also launched a skincare line in early June.^[ii] Both lawsuits claim the Hollywood stars’ brands are confusing to customers and retail partners due to the names being similar to existing companies.

What is a trademark?

A trademark is a form of intellectual property that “can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.”^[iii] A trademark is used to refer to a product that identifies as goods, while a “service mark” is used for services.^[iv] A trademark is utilized to assist customers in recognizing and identifying a product in the marketplace as well as aid customers in differentiating a product from its competitors. A trademark also can “provide legal protection for” a brand and help guard the brand “against counterfeiting and fraud”.^[v] A trademark awards the owner with the rights to use a word or phrase in reference to specific goods and services, but not the right to the particular word or phrase in general. A trademark is highly successful in providing its various protections when it is creative and unique in reference to the good or service it describes.

Top Gun: Maverick May Be A “Copy-Cat”

June 29, 2022 | by Scarlett Sloane

The exclusive right to copy and distribute a creative work, or a copyright, provides protection to its owner and that person’s original expression of an idea or thought. The film released on May 27, 2022, “Top Gun: Maverick”, has recently found itself involved in a copyright infringement lawsuit. The classic film “Top Gun,” featuring Tom Cruise in the starring role, is based on a magazine article written in 1983. The heirs of the author of the magazine article filed a lawsuit on June 6, 2022, in federal court in Los Angeles, California alleging copyright infringement.^[i] The heirs claim that Paramount Global’s rights to the original magazine story expired in 2022.^[ii]

What is a copyright?

A copyright is a form of intellectual property that secures “original works of authorship” once the creator has created a “tangible form of expression.”^[iii] A copyright is able to protect a wide variety of works, including photographs, musical compositions, books, plays, architectural renderings, and movies.^[iv] Once a creator composes the original work and creates a tangible item from it, that person become the creator and copyright owner. The United States law regarding copyrights awards the creator and copyright owner with exclusive rights to make copies of the work, display the work, and, important to the case at hand, assemble derivative works based upon the original work. The original owner of the copyright also carries the right to allow or authorize other individuals or companies to exercise the exclusive rights they hold. Lastly, the original owner and its heirs have the right to terminate granted rights after thirty-five years.