NFTs – “The art of copying” in the digital world: Non-fungible tokens vs. fashion companies.

NFTs – “The art of copying” in the digital world: Non-fungible tokens vs. fashion companies.

By Paula Caraffa Morando and Sol Baudino.

Big changes in different areas of our society are occurring abruptly, and neither the fashion nor the art industries are immune to this wave of transformations.

The combination of technological development with art, resulted in what is known as crypto-art. In order to avoid counterfeits, this new artistic discipline in the digital realm ensures its authenticity through blockchain technology. Blockchain technology allows the authentication of works created in the metaverse, known as non-fungible ‘Tokens’ (NFT for its acronym).

As fashion is part of the artistic world, it has also experienced several adaptations to the digital world. Largely due to the COVID -19 pandemic, online shopping has become very usual and with a simple click, we can make the product arrive at our homes. In addition, in the last few years, this new form of fashion manifestation through Not Fungible Tokens has begun to emerge.
The garment (be sneakers, dresses, accessories, etc.) is directly downloaded from a digital file, and the customer can wear it in the virtual world, or sometimes redeem it to wear it in the physical world.

Many readers might ask themselves: Why buy virtual clothes? What’s the point of this? Nowadays, “centennials” spend most of their time on social networks or in video games, that is to say, in digital universes, parallel to real life. So, this new digital fashion is about clothes designed in 3D on your body, so you can wear it on the internet or even put it on your digital avatars.

And since what happens in the real world is often replicated in the virtual world, it has not taken long for imitations of clothing to be marketed in the form of non-fungible tokens, mostly of them from well-known trademarks.

One of the companies affected by this new type of infringement is Hermès. This company sued an artist, Mason Rothschild for: trademark infringement, unfair competition and cybersquatting. This man is the creator of the NFT MetaBirkins in the form of bags, that seem to be inspired in the most iconic bag of the French company, the Birkin model.

Hermès claims that this artist seeks to enrich himself at the expense of his prestigious Birkin trademark, since “MetaBirkins” is clearly a copy, being irrelevant for his distinction the prefix ‘Meta’. The company argues that the actions of Mason Rothschild make the consumer believe that those NFT are Hermès products or that a connection between them exists, exercising by this, unfair competition. On the other hand, Hermès accuses him of cybersquatting for registering the domain name “”.

It is likely that the infringers try to defend their position in the lack of legislation or regulations that condemns these copies produced in the metaverse. However, our national Act of trademarks and designations punishes all kinds of reproductions of distinctive signs without the authorization of their legitimate owner, without determining a specific scope of application.
This is the reason why we understand that the mentioned infractions produced in the digital world are covered by our trademark regulations and must be punished. As these legal controversies are progressively resolved, judicial precedents will be generated, putting an end to this kind of infractions.

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