NFTs versus fashion companies: Argentinian perspective – Commentary

Introduction
Trademark infringement example
Argentine perspective

Introduction

The combination of technology and art has resulted in what is known as “crypto-art”. To avoid counterfeits, the authenticity of this new artistic discipline is ensured through blockchain technology. Blockchain technology enables the authentication of works created in the metaverse, known as non-fungible tokens (NFTs).

In recent years, this phenomenon has emerged in the fashion industry too. 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 NFTs, most of them from well-known trademarks.

Trademark infringement example

One company affected by this new type of infringement is Hermès. This company sued an artist, Mason Rothschild, for:

• trademark infringement;
• unfair competition; and
• cybersquatting.

Rothschild is the creator of the NFT MetaBirkins, which seems to be inspired by the most iconic bag of the French company, the Birkin model.

Argentine perspective

Infringers will likely try to defend their position based on the lack of legislation or regulations covering copies produced in the metaverse. However, the Argentinian legislation on trademarks and designations provides penalties for all kinds of reproductions of distinctive signs without the authorisation of their legitimate owner. No specific scope of application is set out.

For this reason, it is thought that trademark infringement in the digital world will be covered by Argentinian trademark legislation and therefore should be penalised accordingly. As these legal controversies are progressively resolved, judicial precedents will be generated, putting an end to this kind of infringement.

For further information on this topic please contact Paula Caraffa Morando or Sol Baudino at Ojam Bullrich Flanzbaum by telephone +54 11 4549 4900 or email ([email protected] or [email protected]). The Ojam Bullrich Flanzbaum website can be accessed at www.ojambf.com.