23 November 2022
Opensea and Brand Protection: NFT marketplace OpenSea is rampant with IP infringements, with experts voicing growing concern about the veracity of trademark violations on the site.
As a reminder, NFTs are Non-fungible tokens which are unique digital items with blockchain-managed ownership. There are many kinds and applications of NFTs such as art, domain names, music, collectibles, photography etc.
What is OpenSea?
OpenSea offers a marketplace allowing for non-fungible tokens to be sold directly at a fixed price, or through an auction, based on the Ethereum ERC-721 standard, the layer-2 scaling solution for Ethereum Polygon, the KIP-7 standard for Klaytn, and the SPL standard for Solana. In 2021, following a heightened interest in non-fungible tokens, the company’s revenue reached $95 million in February 2021 and $2.75 billion in September of that year. By January 2022, the company had been valued at $13.3 billion and has been considered the largest non-fungible token marketplace.
IP Infringements on OpenSea
The World Trademark Review reported that dozens of Opensea accounts are selling major brand names and logos. For example, the OpenSea user ‘OriginalTokenArt’ has over 100 listings selling the names of major brands for $18,800 each. Company names being sold include Microsoft Corp, Dell Inc, The Boeing Company, Barclays, Morgan Stanley, and Verizon. Any buyer can sell NFTs with the collection name of a major brand (eg, ‘opensea.io/collection/brand’), an activity that is similar to cybersquatting.
Recently the Recording Industry Association of America (RIAA) sent OpenSea a Cease and Desist Letter (see here) relating to several music-themed Ethereum Name Service (ENS) .eth domain auctions. Some of the NFT domain names included
There were many more NFT domain names highlighted in the Cease & Desist Letter and OpenSea complied with the letter, continuing the centralized NFT (non-fungible token) exchange’s precedent of honoring copyright complaints.
Monitoring is encouraged
It is important to monitor your brand on these marketplaces to ensure that your brand is not being sold in digital forms outside of your control. Monitoring will find and prioritize the most serious of IP infringements based on a number of metrics including price, NFTs sold and infringement history of the seller.
Enforcing your IP rights on OpenSea
Anyone who uses OpenSea agreed to not infringe or violate the intellectual property rights or any other rights of others. Users represent and warrant that they have, or have obtained, the rights to create and display the NFT on OpenSea and that the content does not contain material subject to copyright, trademark, publicity rights, or other intellectual property rights.
OpenSea will take down works in response to:
- Copyright Infringements via Digital Millennium Copyright Act (“DMCA”) takedown notices and/or other intellectual property infringement claims and will terminate a user’s access to the Service if the user is determined to be a repeat infringer.To request that a collection or item be taken down because you believe that it violates your copyright, you will need to complete this form. Alternatively, you can email your request to email@example.comUpon receiving a copyright takedown request, OpenSean will evaluate the submission for completeness and authenticity. If they determine that a takedown request fulfills the requirements of the DMCA request, they will delist the allegedly infringing content from their site.When OpenSea delists a collection or item due to copyright infringement, they will take steps to inform the affected users (where correct contact details exist). They will forward them a copy of the takedown request with any personally identifying information (PII) redacted and will also provide instructions for filing a counter-notice.
- Trademark Infringements. If your content has been copied that constitutes a trademark infringement, or violates your intellectual property rights, you will need to complete the following form As with other platforms, you must be the rightsholder or someone authorized to act on behalf of the rights holder.In order to be successful, the complainant will need to provide Identification of the copyrighted work(s), trademark, publicity rights, or other intellectual property rights that you claim is being infringed; Identification of the allegedly infringing material that is requested to be removed, including a description of the specific location (i.e., urls) on the Service of the material claimed to be infringing, so that we may locate the material; contact information, a statement of good faith and a statement under perjury.
brandsec is a corporate domain name management and brand protection company that looks after many of Australia, New Zealand and Asia’s top publicly listed brands. We provide monitoring and enforcement services, DNS, SSL Management, domain name brokerage and dispute management and brand security consultation services.