The Fort Worth Press - Can Hermes and Nike stop 'unauthorised' NFTs?

USD -
AED 3.673042
AFN 68.112673
ALL 94.198378
AMD 389.366092
ANG 1.801814
AOA 913.000367
ARS 1003.735016
AUD 1.538462
AWG 1.8025
AZN 1.70397
BAM 1.877057
BBD 2.018523
BDT 119.468305
BGN 1.87679
BHD 0.376794
BIF 2953.116752
BMD 1
BND 1.347473
BOB 6.908201
BRL 5.801041
BSD 0.99976
BTN 84.384759
BWP 13.658045
BYN 3.27175
BYR 19600
BZD 2.015164
CAD 1.39805
CDF 2871.000362
CHF 0.89358
CLF 0.035441
CLP 977.925332
CNY 7.243041
CNH 7.25914
COP 4389.749988
CRC 509.237487
CUC 1
CUP 26.5
CVE 105.825615
CZK 24.326204
DJF 178.031575
DKK 7.158304
DOP 60.252411
DZD 134.221412
EGP 49.650175
ERN 15
ETB 122.388982
EUR 0.95985
FJD 2.27595
FKP 0.789317
GBP 0.798053
GEL 2.740391
GGP 0.789317
GHS 15.795384
GIP 0.789317
GMD 71.000355
GNF 8617.496041
GTQ 7.717261
GYD 209.15591
HKD 7.78445
HNL 25.264168
HRK 7.133259
HTG 131.234704
HUF 395.000354
IDR 15943.55
ILS 3.70204
IMP 0.789317
INR 84.43625
IQD 1309.659773
IRR 42075.000352
ISK 139.680386
JEP 0.789317
JMD 159.268679
JOD 0.709104
JPY 154.770385
KES 129.468784
KGS 86.503799
KHR 4025.145161
KMF 472.503794
KPW 899.999621
KRW 1404.510383
KWD 0.30785
KYD 0.833149
KZT 499.179423
LAK 21959.786938
LBP 89526.368828
LKR 290.973655
LRD 180.450118
LSL 18.040693
LTL 2.95274
LVL 0.60489
LYD 4.882192
MAD 10.057392
MDL 18.23504
MGA 4666.25078
MKD 59.052738
MMK 3247.960992
MNT 3397.999946
MOP 8.015644
MRU 39.77926
MUR 46.850378
MVR 15.460378
MWK 1733.576467
MXN 20.428504
MYR 4.468039
MZN 63.910377
NAD 18.040693
NGN 1696.703725
NIO 36.786794
NOK 11.072604
NPR 135.016076
NZD 1.714237
OMR 0.384846
PAB 0.99976
PEN 3.790969
PGK 4.025145
PHP 58.939038
PKR 277.626662
PLN 4.16352
PYG 7804.59715
QAR 3.646048
RON 4.778204
RSD 112.294256
RUB 104.308748
RWF 1364.748788
SAR 3.754429
SBD 8.383555
SCR 13.699038
SDG 601.503676
SEK 11.036204
SGD 1.346604
SHP 0.789317
SLE 22.730371
SLL 20969.504736
SOS 571.332598
SRD 35.494038
STD 20697.981008
SVC 8.748021
SYP 2512.529858
SZL 18.034455
THB 34.480369
TJS 10.647152
TMT 3.5
TND 3.17616
TOP 2.342104
TRY 34.552504
TTD 6.790153
TWD 32.583504
TZS 2659.340659
UAH 41.35995
UGX 3694.035222
UYU 42.516436
UZS 12825.951341
VES 46.55914
VND 25419
VUV 118.722009
WST 2.791591
XAF 629.547483
XAG 0.031938
XAU 0.000369
XCD 2.70255
XDR 0.760497
XOF 629.547483
XPF 114.458467
YER 249.925037
ZAR 18.15566
ZMK 9001.203587
ZMW 27.617448
ZWL 321.999592
  • RBGPF

    59.2400

    59.24

    +100%

  • BCC

    3.4200

    143.78

    +2.38%

  • SCS

    0.2300

    13.27

    +1.73%

  • BCE

    0.0900

    26.77

    +0.34%

  • RELX

    0.9900

    46.75

    +2.12%

  • CMSC

    0.0320

    24.672

    +0.13%

  • JRI

    -0.0200

    13.21

    -0.15%

  • CMSD

    0.0150

    24.46

    +0.06%

  • NGG

    1.0296

    63.11

    +1.63%

  • GSK

    0.2600

    33.96

    +0.77%

  • VOD

    0.1323

    8.73

    +1.52%

  • RYCEF

    -0.0100

    6.79

    -0.15%

  • BP

    0.2000

    29.72

    +0.67%

  • BTI

    0.4000

    37.38

    +1.07%

  • AZN

    1.3700

    65.63

    +2.09%

  • RIO

    -0.2200

    62.35

    -0.35%

Can Hermes and Nike stop 'unauthorised' NFTs?
Can Hermes and Nike stop 'unauthorised' NFTs?

Can Hermes and Nike stop 'unauthorised' NFTs?

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.

Text size:

Nike became the latest company to file a lawsuit over the issue on Thursday -- suing shopping platform StockX for creating and marketing NFTs with its logo and branding.

It follows a lawsuit last month by French luxury brand Hermes 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.

- Can these cases succeed?

The Hermes 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 First Amendment as an artist, which often has validity in US courts.

In Europe, too: Gauberti recalled the example of a case from a decade ago in which Louis Vuitton lost in its attempts to prevent a Dutch artist placing one of its bags in a picture of a Darfur refugee.

"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 she said 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 a form of art.

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 a briefing note for Lexology.

- Should NFTs be treated differently to physical art?

In his response to Hermes, 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 in a response published on Twitter.

However, Edward Lee of Chicago-Kent College of Law told Bloomberg Law that the Warhol comparison was not perfect since the Campbell Soup Co. was never likely to get into the business of selling paintings, whereas Hermes could well choose to create its own NFTs.

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," Primavera De Filippi, co-author of "Blockchain and the Law", told Business of Fashion magazine.

- What can companies do to protect themselves? -

Hermes 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, in December.

"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."

J.Ayala--TFWP