In 1994, the McDonalds.com case underlined the necessity for brands to manage their portfolio of domain names. 22 years later, the complaint filed by Hermes against “MetaBirkin” stresses the importance of a devising a strategy to deal with Non Fungible Tokens (“NFTs”). Strong of 20+ years of experience in protecting assets on the Internet, the IP Metro team is uniquely positioned to help, notably because our Magnify+ service has been recently updated to deal with NFTs.
As relatively new and obscure as NFTs and the Blockchain may be to many, an NFT-related infringement is not that different than the hundreds most brands have already experienced in the online world. At their core, most frequent attacks involving NFTs revolve around an item displayed for sale on a website. Opensea, one of the major marketplaces for NFTs specifically references the US Digital Millennium Copyright Act (“DMCA”) and acknowledges the broader need for intellectual property-related protections in the NFT world. This contradicts a mainstream perception that – much like was said of the Internet itself decades ago – “law is different on the Blockchain”. Rather, law principles very much apply: brand owners just need to use the right tools to enforce their rights.
More often than not, marketplaces platforms do not like to police their listings. They – often unknowingly – benefit from sales of items, even those that may be infringing on a brand’s rights. Crucially, they will not presume of any particular right if its existence has not been established by the brand owner. To help convince them, Magnify+ allows the brand owner or its counsel to sift through false positives and zero in on actual infringement coming from such platforms. Results are properly presented and sharpened so that they can quickly be acted upon by the platforms’ anti abuse services. With the evidence gathered by Magnify+, the case become clearer and the decision by these platforms to grant a takedown request becomes much easier (and faster). Even though the record of the NFT may still exist on the Blockchain, removing it from the public view is often more than enough, ensuring an adequate and continuous level of protection for the brand.
Even if NFTs appear as a threat to some, brands can also benefit from the phenomenon. A brand offering NFTs reproduction of its most famous design can cater to a new demographic and signal its willingness and ability to innovate.
As “Non Fungible Tokens” NTFs are supposed not to be reproductible. In theory, one can perform a lookup on the blockchain where the particular NFT was “minted” to find who it belongs to, and thus determine its origin. However, because NFTs are present online, it is trivial to download their representation and post it elsewhere. Of course, such representation will not be structurally identical to the actual NFT as it will not include the reference to the blockchain (the so-called “smart contract”) but Internet bystanders will not make the difference and may be misled into believing the item rightfully belongs to the brand owner… When it’s just an online knock-off.
Magnify+ can easily be tasked to identify copies of the NFT that are present outside the marketplace displaying the original. Tailored and actionable results can be used to obtain takedowns. The brand owner can also white-list other legitimate sites that would host a representation of the NFT – such as one of the brand’s online store, or an authorized reseller – to remove false positives and ensure time and efforts are focused on actual threats. Ensuring that copies are not available maintains the rarity of the original NFT and its value. All this can be done from the Magnify+ interface brands already use for domain names-related issues, using a tried and tested approach for an innovative result.
The smart contract at the core of the NFT can be used to determine the rights of reproduction and distribution attached to it when consulting a ledger on the relevant blockchain. However, despite its name, the smart contract has no legal value and – at least for the time being – cannot be enforced in a court of law. A regular, plain, non-blockchain license is still needed to establish rights. It behooves the licensor to ensure these rights are not abused. Using Magnify+, licensors can verify that the rights referenced in the blockchain through the smart contract are continuously enforced on the traditional Internet… and have the tools at their disposal to take action in the alternative.
Those are just a few of the examples of how the ‘use case agnostic’ approach of Magnify+ can ensure brands are protected from, or can take advantage of, NFTs. Get in touch to see how our founders’ 20+ years of experience in dealing with online brand protection can make a difference.
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