Digital Fashion and Brand Protection: Leveraging Copyright, Trademark, and Trade Dress; NFTs; Ownership Challenges

Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Trademark and Copyright
- event Date
Tuesday, June 21, 2022
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will guide IP counsel on protecting fashion intellectual property in the metaverse. The panel will discuss the various forms of IP that can protect fashion in the digital world of virtual reality and gaming and with respect to non-fungible tokens (NFTs) and the challenges of enforcement. The panel will review past case law decisions and pending cases and developments which will establish new precedent for future protection and enforcement of fashion intellectual property in the metaverse. The panel will also discuss the risks of failing to protect the brands and offer best practices for protecting brands in digital fashion.
Faculty

Mr. Gatto is Co-Leader of the firm's Digital Media Industry and Social Media and Games Industry Teams, and Leader of the firm's Open Source Team. His practice focuses on all aspects of intellectual property, internet and technology law, including patent, trademark, copyright, trade secret and open source. Mr. Gatto advises clients of all sizes on key legal and business issues relating to the use of social media, video games, virtual goods and currency, social networks, virtual worlds, mirror worlds, augmented reality, open source user-generated content, location-based services and gamification.

Mr. Max is a member of the firm’s Entertainment, Technology and Advertising, and Intellectual Property Practice Groups, focusing on counseling clients on IP issues and litigation. He is Co-Leader of the firm's Fashion and Apparel Team. Mr. Max has counseled clients on and litigated numerous cases involving issues on the cutting edge of copyright and trademark law. He has assisted clients in identifying, protecting and preserving their intellectual property assets, including seeking registration of rights in the U.S. and internationally and taking action against infringements of copyrights, trademarks and trade dress. He also has experience developing and implementing anti-counterfeiting programs and pursuing civil and criminal enforcement remedies.

In addition to her decades of experience as a practicing lawyer, Ms. Martin has been a law professor, founder of an intellectual property consulting firm and corporate executive focusing on intellectual property, communications, contracts, mergers and acquisitions and venture capital. She has proven results in working with corporate and nonprofit clients to develop strategies, business ventures and market-driven product introductions. Ms. Martin has a special interest in copyright, privacy and artificial intelligence. For approximately 30 years Ms. Martin has been an Adjunct Professor of Intellectual Property, Media and Internet Law and Intellectual Property Management and Strategic Planning. She has taught at American University’s Washington College of Law, Howard University School of Law, George Mason School of Law and University of Maryland University College.

Mr. Brokate is head of the firm’s Intellectual Property Group. He has extensive experience assisting companies in investigation and enforcement procedures to combat trademark and copyright infringement. With a niche focus on anti-counterfeiting and anti-piracy, he handles all stages of civil anti-counterfeiting and infringement litigation as well as state and federal criminal actions. Mr. Brokate helps companies to secure and protect their IP in the U.S. and abroad, and has worked with clients in industries including luxury goods, fashion, toys, cosmetics, software, sports and entertainment. Recognized as an industry leader, Mr. Brokate is frequently quoted on trends in IP law. He has authored numerous articles and publications and speaks before industry and trade associations on issues including anti-counterfeiting, enforcement and trade dress.
Description
The first ever Metaverse Fashion Week was held starting Mar. 24, 2022, and featured luxury brands, household names, and digital-native designers. Digital fashion and NFTs have exploded onto the scene and with their expansion have come the traditional issues facing fashion brands seeking to protect their valuable intellectual property. Consumers are customizing clothing that is superimposed on their gaming avatars and brands are expanding consumer awareness by creating and offering virtual designs in games and virtual reality. With the gaming industry expected to be worth over $200 billion by 2023, fashion brands are taking advantage and featuring and selling their designs in online games. Others have used iconic fashion brands to create and sell NFTs leading to high profile litigations which challenge the balance between the First Amendment and a fashion brand's valuable trademark and copyright rights.
Fashion designers, brand owners, and their counsel should take steps to protect their intellectual property in the metaverse. There are multiple options for protection, including copyright, trade dress, trademark, and patent.
One of the challenges that arise is the question of ownership of digital creation and under what circumstances is the use of a brand's copyright or trademark considered "appropriation art" and when is purported "artwork" an infringement. While the brand may own a famous trademark or copyrighted work, the First Amendment may under certain circumstances permit an artist to the use of a trademark or copyrighted image as appropriation art.
Listen as our authoritative panel of IP attorneys examines the various forms of IP that can protect fashion in the digital/gaming space and the challenges of enforcement given the tensions between appropriation art and nominative fair use and established intellectual property rights. The panel will also discuss the risks of failing to protect the brands and offer best practices for protecting brands in digital fashion.
Outline
- Protecting digital fashion with IP laws
- Copyright: What can you protect?
- Trademark and trade dress in the metaverse
- Domain names in the metaverse
- Design patents
- What does Andy Warhol Foundation for Visual Arts Inc. v. Goldsmith portent for copyrights in the metaverse?
- What can a fashion brand learn from Hermès Int’l. v. Maison Rothschild and Nike v StockX?
- Best practices
Benefits
The panel will review these and other important issues:
- How should counsel leverage IP laws to protect important intellectual property in the digital world?
- What are the hurdles to protecting brands in the digital world and what strategies can be employed to enhance protection?
- What best practices should counsel employ to enforce IP rights in the metaverse?
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