Three years ago, most people had never heard of a non-fungible token or “NFT.” Today, a one-minute clip of archived footage of Justice Ruth Bader Ginsburg’s White House swearing-in ceremony is for sale for nearly $1,000 on CNN’s website, and Tom Brady has launched an NFT platform company that sells digital replicas of sports memorabilia like his iconic 2000 NFL draft card. Seemingly overnight, and spurred by celebrity endorsements, NFTs have grown into a multi-billion dollar industry.

Perhaps inexorably, NFT-related litigation is burgeoning in U.S. courts. Since 2021, the U.S. District Court for the Southern District of New York has issued high profile decisions (1) denying a motion to dismiss trademark infringement claims by Hermés, the luxury fashion business, against the creator of NFTs depicting Hermés’s famed Birkin bags (branded MetaBirkins); and (2) granting Playboy’s request for an injunction against the unauthorized sale of NFTs featuring the Playboy bunny design (branded “Playboy Rabbitars”). See Hermes Int’l v. Rothschild, No. 22-CV-384 (JSR), 2022 WL 1564597 (S.D.N.Y. May 18, 2022) and Playboy Enterprises Int’l v. www.playboyrabbitars.app, No. 21 CIV. 08932 (VM), 2021 WL 5299231 (S.D.N.Y. Nov. 13, 2021). A case pending in the District of Nevada involves misappropriation of trade secrets claims based on the alleged theft of the plaintiff’s NFT-related technologies. See Complaint, Banq v. Scott Purcell, (D. Nev. May 16, 2022) (No. 22-cv-00773-MMD-VCF, ECF No. 1). In the limited number of NFT-related actions filed thus far in the United States, intellectual property issues are front and center.

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