NFT 아트와 상표 사용의 허용 범위

Abstract

As non-fungible tokens(NFTs) have exploded onto the market and into the public consciousness, there is also the inevitable opportunity for misuse of a third-party’s brand name, logo, and/or product in connection with creating NFT art. Minting tools and DIY NFT tutorials are now widely available on the Internet, meaning that anyone could conceivably turn a file into an NFT art. Especially, traditional entities have minted or are planning to mint NFTs that incorporate and feature their respective trademarks and thus there is a additional risk for trademark infringement and trademark dilution. Furthermore, considering parody usage of trademarks is quite prevalent in our society, for a wide variety of uses, there are possibilities of increasing trademark disputes over NFT involving a famous mark, and some could seek to benefit from the success of existing NFTs by minting imitations or parodies of such NFTs. Obviously, trade mark infringement may arise where an unauthorised party mints an NFT linked to the underlying asset, without the asset owner’s permission, and advertises, offers for sale and/or sells the NFT using the asset owner’s registered trade marks. Furthermore, even if the asset owner does not hold any trade marks for relevant goods/services or there is no consumer confusion about the source or sponsorship of the NFT, it may be possible, in certain circumstances, to argue that use of the same or similar mark for dissimilar goods takes unfair advantage of the reputation of the asset owner therefore amounts to unfair competition under the Unfair Competition Prevention and Trade Secret Protection Act. This article analyzes major trademark infringement and unfair competition issues related to NFT-based artworks. Part Ⅱ addresses whether and when NFT-based arts constitute infringement under the current Trademark Act, focusing on the use of trademark as a trademark and consumer confusion and discusses the allowable scope of parody NFTs, including artistic freedom. Part Ⅲ analyzes unfair competition issues related to NFT-based art and addresses the scope allowed in the context of artistic freedom.