Marketing, Brands, Trademarks & Copyright

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February, 2023. For the first time, an American court ruled on the intellectual property ownership of a brand reproduced in NFT form, in this case a virtual recreation of Hermès’ iconic Birkin bag. The luxury brand, which claimed the NFTs profited unlawfully off the goodwill of its product, won its case against American artist Mason Rothschild. This case was closely watched, since it helped clarify how existing trademark rights will be applied to verify ownership of digital art.
On a related note there is cybersquatting, where profiteers use the domain names confusingly similar to a trademark to profit from the goodwill associated with it or to redirect internet traffic to their own website. A problem most people associated with the dot.com age, the fight for online territory is back in a big way in the Web3 era thanks to the crypto rush, resulting in increasing litigation to recover domain names for .nft or .eth sites.

Parasitism is in the eye of the beholder

In the next 18 months France will play host to two of biggest tournaments in world sport, the 2023 Rugby World Cup and Paris 2024 Olympic Games. World Rugby and IOC, as well as event sponsors, are gearing up for legal battles to defend their IP rights, notably from counterfeit goods and ambush marketing.
The latter occurs when an advertiser associates its brand with a prominent event, such as the Super Bowl or World Cup, despite not being an official sponsor. Coinciding with the 2022Football World Cup, the enfant terrible of British marketing, Brewdog, advertised it beer as an “anti-sponsor” of the tournament, tapping into public unease about the ethics of the event, while simultaneously reminding those same people to consume its beer while watching their favorite team in Qatar.
Official sponsors may be dismayed at this sort of coat-tailing but unless the company engaged in ambush marketing infringes on an event organiser’s or sponsor’s trademark, there is little they can do to prevent it, especially if said advertising takes place offline, in a different country from where the event is being held.

AI and authorship

It may be all too easy to dismiss ChatGPT as Siri on steroids, but the rise of increasingly sophisticated generative AI poses significant IP questions and even has lawyers (like every other white-collar worker, it seems) nervously cracking jokes about the service taking their job.
It is unclear whether any of the material produced by ChatGPT (or other such generative works) is copyrightable under existing laws, but the prevailing notion is that individuals using AI technology may claim copyright protection for the finished work.
Entrepreneurs have not been slow to use ChatGPT and the backlash has begun. In the US, ChatGPT powered AI lawyer DoNotPay is being sued for practicing law unlicenced and giving poor legal advice, while in April Italy became the first Western country to issue a blanket ban on the use of ChatGPT, although this was later lifted. The coming 12 months promise to be eventful in the world of intellectual property