Litigation partners Catherine Nyarady and Crystal Parker’s latest intellectual property litigation column, “Bored Ape Yacht Club and Trademark Protection for NFTs,” appeared in the November 10 issue of the New York Law Journal. The authors discuss a recent Ninth Circuit decision that digital, non-fungible tokens (NFTs) can qualify as “goods” that are eligible to receive trademark protection under the Lanham Act. The panel found that case law denying trademark protection to plaintiffs who created intangible, expressive content contained within tangible goods like videotapes and CDs did not establish a bright-line rule exempting intangible goods from trademark protection. The NFTs at issue in the case could be “goods” protected by trademark law because they are not contained in or associated with tangible goods but rather exist only in digital form and are associated only with digital files. This decision could influence future trademark cases over NFTs and other digital assets. Litigation associates Scott Caravello and Ancheng Da assisted in the preparation of this column.
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