NY NFT Trademark Lawsuit by Hemmes regarding Birkin bag NFT art

A decision from Judge Rakoff from the SDNY regarding a motion to dismiss in a case involving NFTs.  See https://images.law.com/contrib/content/uploads/documents/389/164932/Hermes-v.-Rotschild.Rakoff-order-on-MTD-1.pdf

 The court denied the motion to dismiss.

Mr Rotschild, the defendant, created a digital image of the Hermes Birkin bag, with a baby fetus inside the bag.  It sold for $23,500.  He also created images of faux fur Birkin bags, and 100 numbered NFTs that sold for about the price of a real world Birkin bag.

Hemmes sued Rotschild for trademark infringement.  Rotschild says the NFTs are art that have First Amendment protection.  He also said that his use of MetaBirkin for the title of his art had First Amendment protection.

The court said that there were too many factual issues to determine (e.g. is the NFT art?) to dismiss the case against Rotschild without having a trial.

.au Domain Names - Policy Review

auDA has constituted a policy review panel to review virtually all domain name policies in Australia, as well as to recommend a policy to implement direct registration in Australia.  I am chair of this policy review panel.

See https://www.auda.org.au/policies/panels-and-committees/2017-policy-review-panel/

I strongly urge you to review the issues papers and to provide feedback.

Direct registration will allow registration of domain names in Australia such as cyberspace.au.

There are other reforms being discussed.  See the Issues Paper that was published at the end of January.

Domain names

Discussion for this week's lecture will include:

• what is a domain name? 
• who ultimately controls domain names - what roles do ICANN, auDA play? 
• what legal rights do you have in a domain name?
• how much are domain names worth?
• what is cybersquatting?
• how can you resolve domain name disputes?  Please be familiar with the elements of the UDRP and the auDRP.  Are these processes preferable to court?  What are the advantages and disadvantages of each option?
• how would you go about judging a domain name dispute under the UDRP?  Are the decisions consistent?
• what other policies and legal issues impact on an entitlement to domain names?
• new GTLDs

Article on Domain Name Law

See this brief article that I wrote as an introduction to domain name law.

7s Domain Name Decision

Is it cybersquatting to point a domain name to a website that has no relationship with the semantic meaning of the domain name?

See 7(s) v. Luo decision

Discussion: Domain Name Wire

Domain name disputes and cyberquatting

Domain name disputes and cyberquatting

What are the common elements of domain name dispute resolution process?

For a good overview of the Uniform Dispute Resolution Process (UDRP), and the factors relevant to each element, see the WIPO website.

The Australian Dispute Resolution Process for domain names (managed by auDA), can be found here.

What are the differences between these two policies.

We will be discussing some of the following cases, which would be good to review before class:

brisbane.com

q1resort.com

"sucks" cases - red bull and bakersdelightlies

personal names

Who should win in this case?

We will also discuss the proposal for new top level domains.

Cybersquatting

Cybersquatting Cases Hit Record In 2008
WIPO has announced that companies and celebrities ranging from Arsenal football club to actress Scarlett Johansson filed a record number of "cybersquatting" cases in 2008 to stop others from profiting from their famous names, brands, and events. The most common business sector in which complaints arose was pharmaceuticals, due to Web sites offering sales of medicines with protected names.