Bloomberg Law
Jan. 28, 2022, 10:02 AM

Hermès NFT Trademark Suit Has ‘All the Digital Marbles’ at Stake

Samantha Handler
Samantha Handler

A fight over the use of the Hermès trademark in artistic non-fungible tokens highlights the legal tension between trademark rights and the First Amendment’s right to expression.

NFTs are a relatively new market for artists, making earlier case law on protection for brand owners difficult to apply—and leaving room for courts, possibly including the the U.S. Supreme Court, to set new precedent for the Rogers test.

Courts use some version of the Rogers test to balance potential trademark infringement with First Amendment rights in cases involving expressive works. The test tends to favor artists and differs across appeals courts.

“This ...

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