The Biggest Trademark Decisions of 2023: A Midyear Report

Intellectual property attorney Thomas Brooke spoke with Law360 about this year's significant trademark decisions. 

He discussed two cases: Hermes et al. v. Rothschild, which stemmed from Hermes filing a lawsuit against Mason Rothschild for infringing and diluting Hermes International's trademark with his "MetaBirkins" non-fungible tokens, and Jack Daniel's Properties Inc. v. VIP Products LLC, which stemmed from a disagreement over a VIP Product Inc. dog toy that was poop-themed and resembled Jack Daniel's whiskey bottle. 

The U.S. Supreme Court rejected a circuit court's ruling that the toy was protected by the First Amendment, arguing that a spoof doesn't automatically block infringement if there is a source identifier. As for the Hermes case, a jury decided Mason Rothchild did infringe and dilute Hermes International's trademarks. Later, a New York federal judge rejected Rothschild's appeal for a new trial, denying his assertion that jury instructions misled jurors about work protected under First Amendment rights. Mr. Brooke says both cases are interesting because they used trademark law instead of copyright law. He also highlighted that people making NFTs won't be able to use the name or logo of someone else's brand.

"It's going to affect anybody making NFTs, that's clear," said Mr. Brooke.

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