By now, many have likely heard of the metaverse—a network of digital environments where individuals can use avatars to, among other things, interact and shop. The metaverse is undoubtedly one of the hottest topics in recent years. So, while still in the early stages, it’s unsurprising that fashion brands have shown an interest in the metaverse’s potential.
One reason fashion brands have taken an interest in the metaverse is, presumably, due to the creative freedoms it allows. In the metaverse, creatives aren’t limited by supply chain issues or travel delays—they can simply produce a product that is instantly and freely accessible to consumers. But with that freedom comes an easier means for counterfeiters to infringe upon brands’ valuable intellectual property (IP).
For example, Roblox users can purchase authentic virtual clothing and accessories from Gucci and Ralph Lauren, but there are also countless unauthorized products available for purchase, including Cartier LOVE bracelets, Supreme hoodies, and Chanel blazers.
Numerous fashion brands have also started offering non-fungible tokens (NFTs), one-of-a-kind digital assets that can be used to represent items, such as works of art, videos, and even digital (or physical) garments. For example, Gucci, Rimowa, Dolce & Gabbana, Givenchy, and others have launched NFTs to engage with the digital community. On the other hand, NFTs have provided a new medium for copycats. A fairly high-profile example is the MetaBirkins NFTs—colorful, hyper-realistic, and furry depictions of Hermès’ famous Birkin bag—which are the subject of an infringement, dilution, and cybersquatting suit brought by Hermès. Mason Rothschild, the MetaBirkins creator, recently moved to dismiss Hermès’ suit, arguing that his use of “MetaBirkins” was protected artistic expression under the Rogers test—under which the use of a third-party trademark with a creative work does not infringe unless the use (1) has no artistic relevance whatsoever, or (2) is explicitly misleading. While the U.S. District Court for the Southern District of New York (SDNY) agreed that NFTs can be subject to the Rogers test—which up until then was an open question—it denied Rothchild’s motion to dismiss because Hermès’ amended complaint sufficiently alleged that his use of “MetaBirkins” is explicitly misleading.