Trademarks in Virtual Worlds: NFTs, Digital Goods, and the Rogers Line After Jack Daniel's
By Casey Scott McKay ·
When a digital artist minted a hundred images of fur-covered handbags and called them MetaBirkins, he produced the first jury verdict in American trademark law about whether a token pointing to a JPEG is art, a product, or both. This article explains what that case and the ones around it actually decided. It works through the two questions that determine every virtual-goods dispute: whether the accused use is expressive enough to invoke the Rogers framework, and whether Jack Daniel's v. VIP Products removed that framework by holding it inapplicable where a mark is used as a source identifier. It explains why the answer usually turns on how the defendant marketed the thing rather than on what the thing is. It then covers the practical layer most articles skip - how the USPTO and the Nice Classification actually treat virtual goods and NFTs, why "non-fungible tokens" is not an acceptable identification, and which classes a real filing program needs. It closes with the ownership confusion at the center of the market: buying a token is not buying a copyright, and almost nobody selling one says so clearly.
IP and Technology > Internet | Article | Published 11 July 2025 - Updated 26 September 2025 | Casey Scott McKay - marksy.us
Summary. When a digital artist minted a hundred images of fur-covered handbags and called them MetaBirkins, he produced the first jury verdict in American trademark law about whether a token pointing to a JPEG is art, a product, or both. This article explains what that case and the ones around it actually decided. It works through the two questions that determine every virtual-goods dispute: whether the accused use is expressive enough to invoke the Rogers v. Grimaldi framework, and whether Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023) removed that framework by holding it inapplicable where a mark is used as a source identifier. It explains why the answer usually turns on how the defendant marketed the thing rather than on what the thing is. It then covers the practical layer most articles skip — how the USPTO and the Nice Classification actually treat virtual goods and NFTs, why "non-fungible tokens" is not an acceptable identification, and which classes a real filing program needs. It closes with the ownership confusion at the center of the market: buying a token is not buying a copyright, and almost nobody selling one says so clearly.
Keywords: nft trademark · metabirkins · hermes v rothschild · yuga labs v ripps · jack daniels v vip products · rogers v grimaldi · source identifier use · virtual goods class 9 · downloadable virtual goods · nice classification virtual goods · retail store services virtual · smart contract royalties · digital collectibles · token versus work · dapper labs securities · vans v mschf · digital replica · metaverse filings · platform takedown nft
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