Artistic Relevance doctrine sets out a defense to trademark infringement if defendant’s reproduction of a third-party trademark is artistically relevant to its expressive works, and if such use is not explicitly misleading. Originally applied to a movie title (Fellini’s Ginger and Fred), the doctrine has now extended the concept of “expressive works” to greeting cards and dog toys.
Simultaneously, the present manner of marketing non-fungible tokens, encrypted files on a blockchain linked to digital files for purposes of establishing provenance, lends itself easily to the claim that most (if not all) NFTs are expressive works.
Hermès, owner of the BIRKINS trademark for handbags, has now sued an artist, under the name META BIRKINS, selling a collection of NFTs which depicts fanciful depictions of imaginary Birkin bags. Artistically relevant? Explicitly misleading? We will explore the doctrine’s application to this brand new bag.
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