The Intersection Between NFTs and Trademark and Patent Protection

Abstract

The appeal of non-fungible tokens (NFTs) is predominantly linked to the surge in cryptocurrency markets. While much of the academic discourse around NFTs and intellectual property rights has revolved around copyrights, there is a notable shift towards also examining industrial property rights such as trademarks and patents which has l received a lesser focus. NFTs are unique digital identifiers secured on blockchain technology, which facilitates ownership verification and transfer. The decentralised security, transferability and governance inherent in NFTs can make NFTs attractive to trademark and patent holders. However, this decentralisation also introduces challenges, particularly concerning rights infringement. It produces complexity in the enforcement of trademark rights as the unauthorised minting of NFTs can occur without the consent of brand owners, which can lead to confusion about the source of goods. This chapter gives a brief overview of many landmark cases, such as Hermès International v. Rothschild and Nike Inc. v. StockX LLC ; Yuga Labs. v. Ryder Ripp ; and the Juventus case, all of which have illustrated the legal complexities surrounding the NFT-related trademark disputes. The key consideration is the need for existing trademark frameworks for adapting the characteristics of NFTs for managing infringements. The chapter then analyses how NFTs present opportunities for monetising patent assets. While they can promote transparency and liquidity, tokenising patents also complicates and raises concerns of privacy and how they will be recorded at IP offices. The chapter also focuses on NFTs issues associated with patentability subject matter, novelty, non-obviousness, inventorship and ownership.