Selling the intangible in fashion: what does it mean for trademark protection?

As major fashion brands launch their own non-fungible tokens, others are testing the limits of trademark enforcement in the digital realm, say Cynthia Walden and Sarah Kelleher of Fish & Richardson.

Selling the intangible or questionably valued is nothing new, but the issue currently on many brand owners’ minds is whether the new non-fungible token (NFT) trend is here to stay—and more importantly, whether NFTs are worthy of new trademark filings and enforcement efforts. 

While arguments exist that infringement of trademarks in connection with virtual goods and services should be covered by the “natural zone of expansion” doctrine, best practice would be to file applications for important brands for virtual versions of the brand’s goods or services and to ensure enforcement efforts cover this new market. 

Industry leaders in the luxury and apparel space are leading the way with new filings and enforcement strategies that can aid brand owners in navigating the novel NFT marketplace.