“NFT”, along with “Metaverse”, are the business community’s latest buzzwords. NFTs provide new and interesting opportunities for businesses and brand owners to promote their products and services and an avenue to introduce new products; whilst the Metaverse promises to be a whole new playground and marketplace. However, a field of opportunity can also be a minefield for the unwary.

As with many new technologies in the past, questions have arisen as to how traditional IP laws, many parts of which were written in more archaic times, should be applied to NFTs. To put things in perspective, a US judge (Judge Katherine B. Forrest), commenting on the difficulty with adapting copyright law to swiftly-changing technology, famously quipped in 2008 that “[w]hen the Copyright Act was amended in 1976, the words ‘tweet’ and ‘viral’ invoked thoughts of a bird and a disease…”. Whilst it is often copyright law that bears the brunt of these challenges, NFTs have also turned the heat on trademark laws.

We examine two NFT fights that are currently ongoing before the US courts which touch on brand-related issues and distil from them some takeaways for brand owners.

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