Factors and Rule Adaptation in Determining NFT Trademark Infringement

Abstract

As non-fungible tokens (NFTs) generated by blockchain technology, NFTs may incorporate trademark elements, giving rise to complex infringement issues due to their technical characteristics and novel commercial forms. A review of leading domestic and international cases reveals core judicial concerns. Initially, at the level of legal characterization, it is essential to look beyond the underlying technology and focus on the external representations of the content linked by an NFT to ascertain whether it carries the commercial use attributes recognized under trademark law. Whether the NFT represents a purely virtual good or is tied to a physical asset, the analysis should center on whether the trademark’s source-identification function is affected. Moreover, in assessing likelihood of confusion, one must consider the specificity of the trademark registration classes, consumer perceptions in real-world usage contexts, and the practical impact of industry-wide brand positioning, thereby constructing a framework suited to scenarios that span virtual and physical domains. Finally, in delineating the scope of fair use, non-commercial fair use is mainly divided into artistic expression, with originality and non-commercial intention as the core. Commercial fair use is mainly indicative use, which needs to be reviewed in combination with the differentiated binding form between NFT and physical objects to prevent infringement under the guise of art. Determining NFT trademark infringement thus demands a balanced approach that upholds the core objectives of traditional trademark law—protecting source identification and preserving market order—while accommodating the distinctive features of the technology. Through the interplay of judicial practice, theoretical research, and industry norms, a trademark protection system adapted to NFTs can be established.