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Abstract

Three cases involving non-fungible tokens are grabbing the attention of fashionistas, intellectual property mavens, and metaverse cognoscenti alike. All three are cases of first impression, despite involving trademark infringement claims. All are considered to be cases that will determine whether old trademark principles apply to new technology, and each has compelling and competing arguments that may militate against findings of infringement. While most commentators have focused on the questions surrounding alleged infringement, very few have discussed the challenges of applying remedies, such as injunctions, traditionally used in trademark infringement cases.

This article considers trademark law and examines it in a new light—that of NFTs and the challenges this new digital world presents trademark owners. The first part of the article offers a quick primer on non-fungible tokens (NFTs), while the second part discusses three cases currently in litigation, Yuga Labs v. Ripps, Nike v. StockX, and Hermès v. Rothschild. The third part highlights issued court opinions in two of those cases and focuses on the arguments presented by the parties in Yuga Labs and Hermès. It further illustrates the use of old trademark principles by both parties and the courts in a brave new technological world. Finally, the last part of the article briefly considers the use of injunctive relief and its shortcomings, as illustrated in a recently adjudicated European case. At the same time, the conclusions acknowledge that although some aspects of trademark law are adequate in providing trademark owner protection, there needs to be some equilibration of remedies to meet the new realities of infringement in the digital world.

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