Everything is being tokenized these days, including art, games, collectibles and much more. The record prices being fetched have created an NFT frenzy. This distribution model has created a new channel for monetization of creative IP. Given some of the unique aspects of NFTs, IP owners need to rethink their IP protection and licensing strategies. IP protection strategies should include specific protection relating to NFTs. Due to some of the unique aspects of NFTs, various new considerations need to be addressed when licensing IP. NFT creators need to be mindful of potential infringement issues when using third party IP and should also consider IP protection for their original creations.
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Ninth Circuit Retires Fee-Award Standard, Imports Octane Fitness to Trademark Cases
This week, the U.S. Court of Appeals for the Ninth Circuit joined a majority of appellate courts that have rejected rigid tests for attorneys’-fees awards in favor of flexible discretion at the district court level. The Ninth Circuit’s pre-Octane Fitness rulings provided a safe-harbor for litigants: fees were only to be awarded in instances of “malicious, fraudulent, deliberate or willful” infringement or where a frivolous case was brought or maintained in bad faith. That standard has been discarded and replaced by a different, more general test that asks whether the case stands out in terms of its strength or unreasonableness in the way it was litigated.
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B&B Hardware v. Hargis – U.S. Supreme Court Declares TTAB Findings Can Have Preclusive Effect on Subsequent Federal Court Decisions
On Tuesday, March 24, 2015, the U.S. Supreme Court issued its second decision in substantive trademark law in nearly a decade. B&B Hardware, Inc. v. Hargis Indus., Inc., No. 13-352, slip op., 575 U.S. __ (2015). Sheppard Mullin argued on behalf of the prevailing respondent in the first case, Hana Financial, Inc. v. Hana Bank, decided earlier this year.
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