Intellectual Property & Technology partner Theresa House was quoted in the Law360 article, “NFT Trademark Ruling Highlights Free Speech Limits In Art,” which analyzes a recent U.S. Court of Appeals for the Ninth Circuit ruling recognizing nonfungible tokens (NFTs) as trademarks.
The 9th Cir.’s decision marks the first time a federal appeals court has ruled that NFTs may qualify as protectable goods under the Lanham Act. It also narrows the scope of the First Amendment defense for expressive works, following the U.S. Supreme Court’s 2023 Jack Daniel’s decision.
House commented on the broader implications for brand protection in the digital space, noting that NFTs’ ability to verify the provenance of goods makes trademark protection a logical fit. “Being able to prove something is what you say it is, I think is one of the more challenging things facing luxury goods in today’s day and age,” she said. “I think NFTs have the potential to help with that.”
Although the high cost of creating, maintaining, and transferring NFTs remains a barrier to widespread use in proving ownership, House noted that costs could fall as data infrastructure improves. “This stuff is inevitably going to become cheaper to maintain,” she said. “And some things like NFTs, which are kind of cost-prohibitive for a lot of consumers, might become less expensive.”
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