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nft risks and opportunities

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nft risks and opportunities ( nft-risks-and-opportunities )

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NBA Top Shot sold $230 million in NFTs linked to basketball highlights over a four-month period.[ix] Taco Bell recently debuted several taco-inspired NFT gifs, resale prices for which have risen as high as $3,600.[x] Others are not far behind. Importantly for brand managers, NFTs have potential usefulness not only in association with digital images but also for physical products. According to a Gucci executive, NFTs for physical luxury goods are inevitable, which would open up a new field of NFT uses for brand owners.[xi] LVMH is reportedly already using the AURA blockchain to allow customers to trace the authenticity of luxury goods using NFT-related technology.[xii] Brand managers should be prepared to address this significant market change and its potential impacts on physical product marketing, advertising, development, and general sales practices. While NFTs present opportunities for brand owners in both digital and physical markets, they are not without risks—including, specifically, counterfeiting. If NFTs are minted that contain phony information, or if the link between the NFT and the digital image doesn’t work, consumers could be misled as to the nature or value of their NFT purchases. If NFTs for physical luxury goods are popularized, as Gucci suggests, they could also contribute substantially to the trade in knockoffs, as where an unauthorized NFT is used to in an effort to demonstrate the authenticity of a fake product. Brand and business owners should take care when operating in this new space and should consider the possibility of future consumer safety regulation if NFTs are found to create genuine counterfeiting risks. Conclusion NFTs are novel digital assets with a wide array of uses for businesses, brand owners, and individuals in the art, entertainment, fashion, and marketing/advertising realms. However, they are not without risks. Entities and individuals seeking to enter the NFT market should (1) carefully consider the risk of copyright infringement or false advertising liability; (2) anticipate possible changes to relevant legal doctrines that may create litigation uncertainty or affect NFT ownership obligations; and (3) be aware of the possibility of NFTs for physical products, as well as the brand loyalty monetization opportunities and counterfeiting risks this poses. Crowell & Moring will continue to monitor these issues as they develop. [i] Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 (S.D.N.Y 2013), aff’d, 910 F.3d 649 (2d Cir. 2018). [ii] Marion Maneker, NFTs are Creating the Opposite of Everything They’re Meant to Fix, Artnews (Mar. 15, 2021), https://www.artnews.com/art-news/market/nfts-create-opposite-of-everything-they-are-meant-to-fix-1234586769/. [iii] Terms of Service, OpenSea (Mar. 25, 2021), https://opensea.io/tos. [iv] Terms of Service, MakersPlace (Apr. 13, 2021), https://makersplace.com/terms/. 4

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