Trademarks and new digital technologies

Moderated by Séverine Dusollier, Professor, Sciences Po Law School.

Speakers

• Irene Calboli, Professor of Law at Texas A&M University School of Law.

Non-Fungible Tokens and Trademark Law: Will New Rules Apply in the Metaverse?
Non-Fungible Tokens (NFTs) have been prominent in the news lately, also for some unwanted and growing legal concerns. Some notable examples of today’s digital media associated with NFTs include paintings, twitch highlight clips, GIFs, photos,viral tweets, etc. Not surprisingly, art collecting and speculation have become prominent activities regarding NFTs, and some NFTs have recently been actioned and sold for staggering amounts. In the United States, a pending litigation opposes trademark infringement and artistic freedom in a case related to NFTs made by an artist with digital pictures of Hermes’ famous Birkins covered in fur, which the artist called “MetaBirkins.” Perhaps as a reaction, luxury brands have rushed trademark applications for the metaverse, creating additional issues, particularly regarding the formalities for registering NFTs for virtual products.  

• Julien Cabay, Professor and Director of JurisLab at Université Libre de Bruxelles (ULB) & Thomas Vandamme, PhD researcher in engineering at Université Libre de Bruxelles (ULB)

Legally Blind? Findings on Transparency and Explainability through a Study of AI-Powered Trademark Search Engines
The question whether two objects are similar in a relevant manner is core to intellectual property law. The answer is extremely complex and entirely left to IP Offices and judges, respectively in the frame of administrative and judicial proceedings, without any proper analytic tools. Yet, algorithmic decision systems (ADS) are currently being developed and used by private companies for the purposes of IP enforcement (monitoring infringing goods online, filtering out content) and registration by IP Offices, outside of public scrutiny. The use of such systems in trademarks raises interesting methodological and practical difficulties that in turn, evidenced normative issues related to transparency and explainability, and possible legal biases. 

• Alain Pottage, Professor, Sciences Po Law School

Materialising distinctiveness
Abstract to come.