NFT Infringement: No Free Taking or New Fair Transformations?

Earlier this month sports apparel giant Nike sued StockX LLC, a Michigan-based sneaker and streetwear resale marketplace, for offering to its customers non-fungible tokens (NFTs) depicting Nike’s sneakers. The claims asserted in the February 3 complaint filed in federal court in the Southern District of New York include trademark infringement, trademark dilution and unfair competition, all stemming from inclusion of Nike’s trademarks (e.g. Nike, Air Jordan, Jumpman, the “Swoosh” Design) in the shoe images depicted in the NFTs provided by StockX.