Can I use some else’s brand in my NFT?
If it is a well-known brand, or technically spoken a brand with a reputation in Germany, you shouldn’t! Apart from that it would depend on the question if the usage would lead to the assumption that the NFT was created by the brand you are using. If this is the case it is not permitted to use the brand. On the other hand, it can be legitimate to use the brand especially if the brand is predominantly used for artistic purposes rather than simply for commercial reasons.
If the brand is a registered trademark, it is protected from infringement under the
Trademark Act, 1999. Infringement includes the use of trademark without permission.
To lawfully use someone’s brand in the NFT through permitted use, one would require
the consent of the registered proprietor in a written agreement.
Concerning national trademarks, the right to the trademark is acquired by registration
in the register, so not all brands are protected – you have to check if the trademark is
registrated or not.
Since we are talking about a legally registrated trademark, then one is not allowed to
use (a) a sign that is identical to this particular trademark and is used for goods or
services identical to those for which the mark has been registered or (even when not
identical and/or not used for identical goods or services) (b) if anywhere there is a
likelihood of confusion on the part of the public or (c) if the trademark has a
reputation in Greece and the use is considered without due cause, and would take
unfair advantage of the distinctive character or reputation of the trade mark or would
be detrimental to the distinctive character or reputation.
All in all, given that the above-mentioned legal boundaries are indistinguishable, it is
safer to avoid using someone else’s brand in your NFT.
The principle is the requirement of authorization. Outside the scope of authorization, only use that qualifies under law as legal is permitted.
Here are some examples: use of a caricature of a brand where this qualifies under freedom of expression; comparative advertising that qualifies as such; the spare parts exception, etc.
It is necessary to verify if the trademark is protected when carrying out the search at the INPI (National Intellectual Property Institute). Law nº 9279/96 regulates rights and obligations related to industrial property and establishes which are the signs that can be registered as a trademark and that trademark ownership is acquired through registration. It is necessary to have written or declared authorization to use the brand in the NFT.
Very risky to do so without a trademark license.
The circumstances in which it may be allowed to do this as a matter of fair use are being
determined by the courts in cases such as Nike vs. StockX and Hermes v. MetaBirkins.
It is risky to use an image of a well-known brand for NFTs, including logotypes and word marks. Any promotion of unauthorised NFTs will be scrutinised with a potential notice and takedown action from the brand’s owner, as was the case with John Terry’s NFTs featuring the Premier League’s Trophies. Exceptions apply when a minter operates under the brand’s licence.