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Agence France-Presse

As digital objects in the form of NFTs have exploded in popularity and value over the past year, so too have the legal headaches and complications.
Nike became the latest company to file a lawsuit over the issue – suing shopping platform StockX for creating and marketing NFTs with its logo and branding.
It follows a lawsuit last month brought by French luxury brand Hermès against artist Mason Rothschild, who has auctioned 100 “MetaBirkins” – a digital “homage” to the label’s famous Birkin bag – some fetching tens of thousands of dollars.
The Hermès case could go either way, said lawyer Annabelle Gauberti, whose firm Crefovi specialises in creative industries.

Rothschild has argued that he is protected by the US Constitution’s First Amendment.
In Europe, too: Gauberti recalled the example of a case from a decade ago, in which Louis Vuitton failed to prevent a Dutch artist placing one of its bags in a picture of a Darfur refugee.
A beginner’s guide to minting NFTs on the OpenSea platform
“The ‘fair use’ defence works well, particularly in UK and US law, in which an artist can use a trademarked word or product to make a point or as a parody,” Gauberti said. But Rothschild may struggle to convince a judge that his work had artistic merit.
“It’s hard to see on the face of it what message he is trying to convey other than that he wants to make a lot of money, so it’s going to be a lot of work for his legal team,” she said.
The Nike case is a more directly commercial affair, since StockX has never claimed its NFTs are artforms. But it remains to be seen how trademark law holds up in the digital realm.

“The extent of these protections in the digital world as well as what remedies can be granted are yet to be explored,” wrote lawyer Danielle Garno.
In his response to Hermès, published on Twitter, Rothschild compared his MetaBirkins to Andy Warhol’s famous Campbell soup paintings.
“The fact that I sell the art using NFTs doesn’t change the fact that it’s art,” he wrote. However, Edward Lee of Chicago-Kent College of Law said the Warhol comparison was not perfect since the Campbell Soup company was never likely to get into the business of selling paintings, whereas Hermès could well choose to create its own NFTs.
Fashion industry looks to online metaverse as test lab for new products
The technology can also confuse matters, since an NFT is actually just a receipt of ownership, rather than the thing itself.
“Many people assume that, when you talk about an NFT, the content of the NFT is inside the token, which it is not, and because it is not, there is no unauthorised reproduction,” said Primavera De Filippi, co-author of Blockchain and the Law.
Hermès has demanded that Rothschild remove and destroy his MetaBirkins, and at least one NFT platform, OpenSea, has already agreed to remove them from sale.

But Gauberti said enforcing the law online is very tricky. “Even if lawsuits are successful, how do you go after the guy who has already bought the item or stop them being sold on secondary auctions? It’s the Wild West in terms of enforcement online,” she said.
The best option, she said, is for brands to get ahead of the copycats and dominate the space with “official” NFTs. Nike has done exactly that, acquiring RTFKT, a company that specialises in designing digital sneakers.
“A strong offence is the best defence,” said Gauberti. “At the moment, a lot of these brands are on the fence (about creating their own NFTs) because their core products are physical, and they’re still watching the space to see if the metaverse will really take off.”


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Fashion

Can Nike and Hermès stop unauthorised NFTs? Lawsuits brought against StockX shopping platform and artist’s ‘MetaBirkins’

MetaBirkins created by artist Mason Rothschild. Photo: Instagram

Hermès is suing artist Mason Rothschild for selling unauthorised digital ‘MetaBirkins’. Photo: Instagram

A MetaBirkin created by artist Mason Rothschild. Photo: Instagram

A pair of Air Jordan 1 Retro shoes sold on Stock X, a live auction site for resale of high-end sneakers, handbags, streetwear and watches. Photo: Jeff Kowalsky/AFP via Getty Images

Sneakers from Nike and Jordan at a StockX event in Hong Kong. 

Who is Irene Zhao, the Singapore Instagram influencer who made over US$5 million selling her photos as NFTs – and caught Logan Paul’s attention in the process?

Irene Dao. Photo: @b1gqing/Instagram

Instagram-famous model Irene Dao is getting attention for another reason right now – her tech savvy. Photo: @b1gqing/Instagram

Irene Zhao was born in China but now lives and works in Singapore. Photo: @b1gqing/Instagram

The model has collaborated with numerous fashion and beauty brands since she started her Instagram page. Photo: @b1gqing/Instagram

Zhao says she knows her followers don’t always like it when she posts sponsored content. Photo: @b1gqing/Instagram

Zhao in a promotional post for ADLV. Photo: @b1gqing/Instagram

Zhao’s first NFT “proof of concept” collection did much better than expected. Photo: @b1gqing/Instagram

One of IreneDAO's NFTs. Photo: @0xIreneDao/Twitter

Irene Zhao’s new So-Col platform hopes to make more money for creators and influencers by cutting out the middleman. Photo: @b1gqing/Instagram

Antiques find new appeal with young, tech-savvy collectors as galleries mint NFTs linked to ancient artefacts

The fusty world of antiques is getting a youthful breath of fresh air, thanks to non-fungible tokens (NFTs). Photo: Felix Wong

Lifestyle

Fashion & Beauty


Luxury brands jealously protect their logos and branding from unauthorised copying, and their use in NFTs is creating headaches and raising new questions
NFTs exist in a grey area, and recent legal action brought by Nike and Hermès will test digital trademark laws



Nike is suing shopping platform StockX for using its logos in NFTs, and Hermès has filed against an artist for selling digital ‘MetaBirkins’, testing digital trademark laws.


NFTs

Hermès

Metaverse

Louis Vuitton