NFT Law: "Non-Fungible Token" Makes Its Appearance in a Case

From Saturday's decision in Playboy Enterprises Int'l, Inc. v. Www.PlayboyRabbitars.app, written by Judge Victor Marrero (S.D.N.Y.):

Plaintiff Playboy Enterprises International, Inc. … filed a complaint to stop the Defendants from counterfeiting the Playboy Marks in connection with the unauthorized sale of fake Playboy Rabbitars non-fungible tokens ("NFTs") on www.playboyrabbitars.app and www.playboyrabbit.com (the "Counterfeit Websites"). The domain URLs for the Counterfeit Websites subsume identical versions of the Playboy trademark and are almost identical to Playboy's actual website selling authentic Rabbitar NFT's www.playboyrabbitars.com (the "Authentic Website").

Playboy filed its complaint under: (1) the Lanham Act (15 U.S.C. §§ 1114, 1125(a), 1116) (Counts I and II); and (2) trademark and unfair competition under New York common law (Count III). Simultaneously, Playboy moved under seal for emergency ex parte relief, which was granted by the Court on November 2, 2021 ("Ex Parte Order"). The Court then held a hearing on November 12, 2021, regarding Playboy's request for a preliminary injunction.

Upon Playboy's Complaint and its accompanying exhibits, the Declarations of Jennifer McCarthy, Sid Nasr, and Marcella Ballard and the exhibits thereto, and all other documents submitted in this action, the Court hereby GRANTS Playboy's request for a preliminary injunction and confirms the seizure order within the Ex Parte Order ….

Comments

[Queen Amalthea]

Has Volokh commented on the Alex Jones defamation verdict today?

I mean, I know it’s not entry 124 of ‘SheLies’ defamation decisions importance and that a fair amount of commenters here likely overlap with Jones’ audience, but it got a bit of press today…

[Bored Lawyer]

That’s so yesterday.

And what would you have Professsor Volokh say? Was there some unique legal aspect to the case? Or is he just a lying scumbag, whose lies hurt someone, and now he has to pay.

(I did read somewhere that the lawyers claim that his show is so fantastical, like claiming lizard people control the White House, that no one believes it. Maybe that’s an angle to discuss. Guess the jury did not buy that kettle of, umm, fish.)

[Bored Lawyer]

When I wrote “is he just a lying scumbag” I meant Alex Jones, of course, not our fearless blog leader.

[AmosArch]

Guy who rants about gay tree frogs = Prince of Darkness Threat to Civilization to leftists.

[bernard11]

Sure, his stuff is idiotic, but a lot of right-wingers swallow it gladly.

As they swallow Carlson, Ingraham, Hannity, formerly Limbaugh, etc.

[AmosArch]

why don’t we go after lies that are actually shown to be widespread, currently being spread, and acted upon? Like the idea that the Jan 6th protests were riots and apparently from the way the media acts the only riots in US history on top of that.

[apedad]

I seemed to have misplaced my notes.

When is Trump being reinstated as President?

[Gandydancer]

Jan 2025, after the Dems’ COVID fake “absentee ballot” trick doesn’t work without the surprise element.

[TutorFrank]

At first glance, this strikes me as absurd. If I give/sell someone a copy of a pdf of one of my favorite O’Rielly books, with the O’Rielly symbol on the front, I haven’t violated a trademark. (I might have infringed a copyright, but that is another matter). What’s the difference here? That somebody decided to call this an “NFT” and record it on a block chain? So what? That’s utterly meaningless to anyone with basic common sense. And I don’t see why it would make a difference to trademark law, trademark law does not create an exclusive right to record things on a blockchain. Neither does any other law I am aware of.

If the buyer cares about the thing being recorded on a blockchain in a particular way, the buyer is an idiot, but I could imagine the buyer having some kind of fraud claim. But that would be an entirely different lawsuit.

[ReaderY]

Suppose you give/sell a pdf of tickets to the Superbowl with perfectly copied Superbowl trademarks on it. No copyright violation?

It’s just a pdf in the same way a dollar bill is just a piece of paper.

[TutorFrank]

A superbowl ticket is something I can present to a person at the stadium that will cause them to let me into the stadium. What can I do with an NFT that I couldn’t do with the same data off the block chain?

[IPLawyer]

Trademark gives you an exclusive right to trade in your mark. The company selling the NFT of Playboy’s mark was trading in Playboy’s mark. Hard to imagine a more open and shut case. Also, I think you are wrong about the fraud issue too.

[TutorFrank]

Can you define what you mean by “trade in Xs mark”? If I sell lmy Lenovo laptop, with Lenovo’s symol on it, am I trading in Lenovo’s mark and therefor violating trademark law? That seems like it must be wrong. The fact that the laptop actually was manufactured and originally sold by Lenovo should make it ok to leave that symbol on there when I resell it. Similarly, my intuition is that Rabbitars, so long as they consist of the same bits, are the genuine article. Whether they are recorded on the blockchain doesn’t change the data being provided.