Partner Mauricio Uribe was quoted in the World Intellectual Property Review article “MetaBirkins: What now for NFTs?”
On the question of whether MetaBirkins and other NFTs should be considered virtual counterfeits, Uribe said, “It’s not so much about looking at them as counterfeits as considering them as goods that are leveraging value from another entity’s intellectual property.”
Uribe commented on the balance between First Amendment rights and trademark rights. He noted, “[m]aybe it does raise awareness of that balance…that the author had the ability to generate this as an expression of the First Amendment. But at the end of the day, the court had to look specifically at the facts. I might create an artistic work, and not have the same commercial activity that Rothschild did. And maybe in that situation, the court would find that it was in fact, under that Rogers test, more of a First Amendment priority than a trademark priority, [and therefore] that the artwork is fine, the value is retained, the whole principle is there.”
Uribe believes that the jury’s decision of infringement had more to do with the commoditization of the NFTs and the artist’s statement behind them. He said, “I think what swung this case, or at least had a greater influence, was the commercial activities and commentary made by the author of these NFTs. Some of the underlying commentary [in court] was that he was choosing to do this, almost in spite of Hermès and the Birkin bag. So that probably swung the decision more than saying there was something not unique about the NFTs and artistic expression but more of commercial activities.”
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