In the case of Hermès, the artist claims that the First Amendment offers protection to artistic creation which is a commentary on culture, an argument known as “fair use”. However, because the artist benefits financially (NFT “Birkin” artwork recently traded for up to $ 790,000) and consumers are highly likely to think they are genuinely Hermes (which, according to Zerbo, is a central consideration in trademark infringement claims), NFTs could be viewed as counterfeits rather than cultural comments.
The Louis Vuitton legal team already makes similar judgments on digital copiers, including the coin’s communicated purpose, commercial nature and likelihood of confusion, according to Maltbie. “If you take it at the NFT level, it’s even more abstract. It’s now just a digital work of art that can be copied and replicated over and over again, and it makes it even more difficult to understand the connection between brand damage and a target that it is possible to fight against. oppose, ”he said.
Jesse Lee, founder of Basic.Space, who worked with Rothschild on the two Birkin-inspired projects, said the project was much more popular than the artist expected and several celebrities have signed up to acquire one via a “prior white list”. Unsurprisingly perhaps, Basic.Space’s Lee pushes brands to “collaborate with creatives native to the space”, rather than going it alone. The maker of NFT is in talks with a number of other luxury brands to discuss future partnerships.
“I don’t think it’s debatable that brands need to look into the metaverse and create these digital assets for themselves,” he says. “Web3 is the new Wild West, and the rules of engagement will change. “
Lupo recommends that brands consider licensing and distribution agreements further in order to retain the rights to the Metaverse. Trexler encourages brands to think about technology they can patent that goes beyond imagery and into the spaces, experiences and elements of the metaverse, even including haptics that could be applied to touch and to. the feel of the clothes. “It’s not just about digital real estate, it’s about the digital experiences you want to have and the technology that produces them. There is a real opportunity for fashion.
Just because fashion brands don’t say anything publicly doesn’t mean they don’t think so, says Trexler. “There is no doubt that there is more to come. The question for fashion brands: do you want to continue playing defense like this? Although [Hermès] sends a cease and desist that seems aggressive, it’s always a defensive move because other people have entered the market before them.
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