Tag Archives: trademark infringement

Hermés: Protect the Trademark or the Art?

Posted on by

In the first trial involving non-fungible tokens, or NFTs, trademark rights and a First Amendment defense, a jury in New York City earlier this month found an artist had violated the trademark rights of Hermés, the iconic French fashion house.

At issue was the artist’s NFT depictions of Hermés’ Birkin bags and his use of the BIRKIN mark in connection with his art. NFTs are digital depictions of art that reside not on walls or shelves of collectors but in the cloud, accessible via the owner’s computer.

Continue reading →

Do Analogous State Statute of Limitations Apply When the Lanham Act Provides None, Or Do Equitable Considerations, Such as Laches? How About Both?

Posted on by

The federal Lanham Act goes beyond trademark protection and establishes causes of action, as well, for unfair competition, false advertising, and false association. Section 43(a), however, does not contain a statute of limitations for claims that arise under the Lanham Act for any of these improper activities. That’s different from the Copyright and Patent Acts which each provide for limitations and apparently that’s the way Congress wants it.

Continue reading →

Unlawful Use of a Trademark in Commerce and the Affirmative Defense to Infringement

Posted on by

The Lanham Act imposes on a trademark’s owner the requirement that the mark be used lawfully in commerce. If it is not, the USPTO should refuse to register it, and if registered the registration should be canceled. As well, unlawful use of a trademark in commerce has been applied as an affirmative defense to infringement in the case of registered marks, and there is no basis to distinguish, for this purpose, registered and unregistered marks. It’s just that the tested cases have been with registered marks.

Continue reading →