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]