In order to navigate a path to registration for non-fungible tokens (NFTs) brands at the U.S. trademark office, first one must define what they are trying to protect.
- Defining the technical nature of an NFT
- NFTs are more than just art or representations of art
- Used for technical purposes; Wallets for Fungible Tokens a/k/a Cryptocurrency
- Service of Court Orders on unknow or hard to identify parties
- Protection for underlying code may be possible via Copyright
- Protection for an image may also be possible under Copyright Law
- If based on existing work, it is transformative, as defined by the U.S. Supreme Court in the Two Live Crew Case and under current consideration by the Court in the Estate of Warhol v. the Estate of Prince
- Can the name of an NFT be a brand? Or series of NFT?
- What does the brand identify? Software? A service? A platform?
- Discussion of approaches taken by Mattel, Bored Ape Yacht Club and others