Fashion and Art in the Digital Era: Understanding NFTs and their Trademark Boundaries

As digital worlds rapidly evolve, human relationships have changed in response; brands are trying to keep up, too, collaborating with these platforms to interact with consumers. However, with this evolution comes new opportunities for brand infringement in trademark and copyright law. A non-fungible token (NFT) is a software code that is associated with distinct, digital or physical goods.[1] In a process called “minting,” a digital file is turned into a unique token and stored on a blockchain.[2] A blockchain serves like a public, digital leger – recording the creation of the NFT and all subsequent transactions for that NFT.[3] This blockchain is what makes the NFT unique, creating an increased proprietary value equivalent to an autograph on a baseball.[4] An NFT can be associated with any fungible digital content, such as "digital art, avatars, video game wearables, digital fashion accessories, and music."[5] The process of associating an NFT with digital content is called “tokenizing.”[6] 

I. How Fashion Brands are Interacting with NFTs

A. Collaboration with Digital Platforms and Consumers

Recently, fashion brands have started incorporating NFTs into their products by tokenizing apparel. In 2022, Prada innovated its "Prada Timecapsule" project.[7] Limited edition bowling shirts and sweaters were presented on the first Thursday of every month; and each month, a new NFT would be associated with a physical product for 24 hours.[8] Further, these NFTs gave purchasers access to exclusive benefits and experiences, only revealed on the brand's Discord community server called “Prada Crypted.”[9]

In 2023, Lacoste launched an NFT card called Undw3 (Underwater).[10] Holders could connect to an exclusive website that provided access to locked Discord channels and events, such as “participat[ing] in discussions with the brand, creative studio and sports ambassadors to provide insights and feedback, as well as co-create Lacoste products.”[11] Balenciaga also created a line of sweatshirts with digital ID’s that give the purchaser access to “Balenciaga Music” – brand-curated playlists and songs exclusively composed for Balenciaga and unavailable in other channels."[12]

Brands are finding ways to strengthen their relationships with consumers through NFT collaborations and post-sale interactions. Brands are creating digital communities where consumers can directly engage with them and develop a genuine connection. However, these brand-established communities also perpetuate exclusivity – preventing others from possessing these digital shirts, listening to specially composed music, chatting on Discord channels, and attending sponsored events.

B. Combatting Infringement on These Platforms

Owners of any category of intellectual property are entitled to exclusive rights in connection with their creations, such as the right to use a trademark or distribute a copyrighted work.[13] “Infringement” is the unauthorized use of a patent, trademark, or copyright holder’s exclusive rights associated with their creation.[14] Some NFT creators have tried to combat the exclusivity of luxury houses by creating digital works that infringe brand trademarks and copyrights. One case that illustrates how NFTs are treated in Trademark law came from the Hermès brand in 2023. In Hermès International v. Rothschild, Hermès brought an action against Mason Rothschild for creating and selling NFTs with digital images depicting Birkin bags.[15] Hermès’ iconic Birkin bags sell for thousands of dollars and have come to possess a “place of cultural importance as a symbol of wealth and exclusivity.”[16] Defendant Mason Rothschild, a self-claimed entrepreneur, released Birkin-related NFTs called “MetaBirkins” which depicted a faux-fur covered Birkin bag.[17] Hermès claimed Rothschild’s MetaBirkins NFTs infringed Hermès’ trademark “Birkin,” infringed the bag’s design and iconography, and diluted Hermès’s goodwill associated with the mark.[18]

To assess the trademark infringement in this case, the court considered whether to apply the “Rogers” test – a test reserved for infringement in works of artistic expression – or the “Gruner + Jahr” test – a test for infringement in works “primarily intended to serve a commercial purpose.”[19] The court decided that the “Rogers” test governed because Rothschild presented sufficient evidence that his Metabirkins were part of an “artistically expressive project” whose sole intention was not to mislead consumers into believing the NFTs were associated with Hermès.[20] For example, Rothschild placed a disclaimer on the MetaBirkins website claiming his NFTS were “not affiliated, associated, authorized, endorsed, or in any way connected with Hermès…”[21] Further, Rothschild expressed that he viewed his project as a way to comment on the Birkin bag’s influence in society.[22] Hermès introduced evidence of Rothschild stating he wanted to capitalize on his NFTs; but, the court explained that evidence that parts of a project were driven by financial motives “does not bar application of the Rogers test.”[23] The court, then, denied Hermès’ motions for summary judgment on trademark infringement and dilution based on the genuine issue of material fact regarding Rothschild’s intent in creating the MetaBirkins project.[24]

In determining Rothschild’s NFTs were artistically expressive and belonged under the Rogers test for trademark infringement, the Southern District of New York suggested that NFTs constituted goods subject to trademark law and, therefore, the Lanham Act. The Ninth Circuit took this reasoning much further in July 2025, explicitly stating NFTs constitute trademarkable goods in a trademark and copyright infringement case.[25]

II. Yuga Labs Inc. v. Ripps: Ninth Circuit Determines NFT Treatment in Trademark Law

The USPTO has tried to keep up with NFTs by providing guidelines to best identify these goods for trademark registration and what classes to assign them to.[26] The USPTO has been flexible, allowing NFT creators and sellers to assign their marks’ goods and services under Classes 9, 25, or 35.[27] Class 9 consists of electrical and scientific apparatuses. [28] Class 25 consists of clothing.[29] Class 35 consists of advertising and business.[30] In Yuga Labs, Inc. v. Ripps, the court found that Plaintiff Yuga acquired trademark rights despite a lack of registration through use, employing its “BAYC” marks in connection with its NFT collection since 2021 – in its website, advertising, clothing, and collaborations. [31] Yuga Labs Incorporated created an NFT collection called the “Bored Ape Yacht Club” (BAYC) where each token was associated with distinct artwork featuring a cartoon ape.[32] Defendant Ryder Ripps criticized Yuga for using racist imagery in their NFTs; he partnered with Defendant Jeremy Cahen to create the Ryder Ripps Bored Ape Yacht Club (RR/BAYC) NFT collection.[33] Ripps’ and Cahen’s NFTs are linked to the exact same images and Ape IDs as Yuga’s BAYC NFTs, but they included an artist statement for potential buyers, “…this is a new mint of BAYC imagery, re-contextualizing it for educational purposes, as protest and satirical commentary.”[34] In June 2022, Yuga filed suit against Defendants for trademark infringement in the Ninth Circuit.[35]

A. Does the Lanham Act Protect NFTs?

Defendants claimed that Yuga bore no trademark rights in its BAYC collection because NFTs’ intangible nature disqualify them as goods under the Lanham Act.[36] Defendants compared NFTs to the intangible video footage in a cassette which was already deemed unprotectable under the Lanham Act.[37] Defendants also analogized their NFT-use to the permissible use of intangible music on a CD.[38] However, use of music does not constitute infringement if the defendant does not create consumer confusion; confusion can be created by showing consumers the digital files, selling the files, or making representations about the files’ source medium.[39]

The Ninth Circuit reasoned that these intangible media were distinguishable from Yuga’s intangible NFTs because the digital content was stored in physical objects: a cassette and a CD.[40] The Ninth Circuit established that NFTs constitute trademarkable goods because they are marketed and traded in commerce just like any other online or physical good.[41]

With an eye towards evolving technologies, the Ninth Circuit left the conversation open for trademark rights, suggesting that protection is not foreclosed simply because goods are fully intangible. Further, the Ninth Circuit’s assessment and rejection of Defendants’ Fair Use and First defenses demonstrates that the Lanham act and trademark infringement defenses apply with equal weight to NFTs.[42] Thus, the Ninth Circuit has explicitly expanded protection to this new technology, establishing the legitimacy of NFTs under trademark law.  

III. Conclusion

With technology ever evolving, brands are trying to keep up with the changing digital landscape – whether by active participation or infringement prevention. Similarly, Courts and the USPTO are grappling with how to treat NFTs and exploring where they fall under intellectual property laws. While this new digital asset provides opportunities for trademark and copyright infringement, the Ninth Circuit’s holdings in Yuga confirm for both NFT creators and emerging brands that the rights associated with their works can officially be protected under federal trademark law.

[1] Yuga Labs, Inc. v. Ripps, 144 F.4th 1137, 1149 (9th Cir. 2025).

[2] Id. at 1150.

[3] Id.

[4] Id. at 1149-1150.

[5] See Hannah Bobek, Note, To Mint or Not to Mint: Non-Fungible Tokens and the Right of Publicity, 92 Fordham L. Rev. 639, 651 (2023).

[6] Yuga Labs, Inc., 144 F.4th at 1140.

[7] Prada Timecapsule Archive, PRADA https://www.prada.com/eu/en/pradasphere/special-projects/2020/prada-timecapsule.html (last visited Sep. 20, 2025).

[8] Kati ChitraKorn, Prada Expands Web2 Offer with Product-Linked NFT Drop and Discord Launch, VOGUE BUSINESS (May 31, 2022) https://www.voguebusiness.com/technology/prada-expands-web3-offer-with-product-linked-nft-drop-and-discord-launch.

[9] Madeleine Schulz, Why Lacoste Is Betting On Blockchain‑Based Loyalty, VOGUE BUSINESS (June 29, 2023), https://www.voguebusiness.com/technology/why-lacoste-is-betting-on-blockchain-based-loyalty.

[10] Id.

[11] Maghan McDowell, Balenciaga Is Giving Its Clothes Their Own Exclusive Soundtrack, VOGUE BUSINESS (Nov. 23, 2023), https://www.voguebusiness.com/story/technology/balenciaga-is-giving-its-clothes-their-own-exclusive-soundtrack.

[12] Id.

[13] Trademark, patent, or copyright, U.S. PATENT & TRADEMARK OFFICE, https://www.uspto.gov/trademarks/basics/trademark-patent-copyright (Oct. 4, 2025).

[14] Managing a Patent, U.S. PATENT & TRADEMARK OFFICE, https://www.uspto.gov/patents/basics/manage (last visited Oct. 4, 2025); About Trademark Infringement, U.S. PATENT & TRADEMARK OFFICE, https://www.uspto.gov/page/about-trademark-infringement (last visited Oct. 4, 2025); Chapter 5: Copyright Infringement and Remedies, U.S. COPYRIGHT OFFICE, https://www.copyright.gov/title17/92chap5.html.

[15] Hermes Int'l v. Rothschild, 654 F.Supp. 3d 268, 272 (S.D.N.Y. 2023).

[16] Id. at 273.

[17] Id.

[18] Id. at 275.

[19] Id.

[20] Id. at 277.

[21] Id. at 278.

[22] Id. at 279.

[23] Id.

[24] Id. at 282.

[25] Yuga Labs, Inc., 144 F.4th at 1159.

[26] U.S. PATENT & TRADEMARK OFFICE, Registering Trademarks for Newer Technologies: NFTs, Blockchain, Cryptocurrency, And Virtual Goods (2025), https://www.uspto.gov/sites/default/files/documents/TM-Newer-Technologies-handout.pdf.

[27] Id.

[28] U.S. PATENT & TRADEMARK OFFICE, Goods and Services, https://www.uspto.gov/trademarks/basics/goods-and-services. (last visited Sep. 20, 2025).

[29] Id.

[30] Id.

[31] Yuga Labs, Inc., 144 F.4th at 1159.

[32] Id. at 1150-51.

[33] Id. at 1152-53.

[34] Id. at 1153-54.

[35] Id. at 1154.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id. at 1158.   

[41] Id. at 1157.

[42] Id. at 1163-1164; Id. at 1167-68.