Marketers far and wide have piled onto the non-fungible token (NFT) craze. To some great success and fanfare, NFTs are being used to promote and monetize media, goods, and services in almost every segment. Media, Fashion, Entertainment, Sports, Gaming, Art, Beverage, Consumer Goods, Financial, and even Enterprise Software companies are getting into the mix. This brief review examines why, how, and where marketers are using NFTs, how NFTs are being abused and gives high-level advice to marketers and brand protection professionals.

Why?—Buzz and engagement. Releasing, auctioning, selling, and giving away NFTs nearly guarantees notoriety and interaction with the hippest of the hip. And as such, it’s hard to find an industry that isn’t hopping on the NFT “brandwagon.” Notably, the buzz and engagement generated by companies’ NFT activity is supercharging their core business. NFTs are helping age-old brands reinvigorate their brand, making them fresh and relevant in today’s culture and technology.

As mentioned in my initial article on NFTs, non-fungible tokens have cemented their place in popular culture. Explained in an SNL skit and later, the subject of a Tonight Show interview, where Paris Hilton gave a gobsmacked Jimmy Fallon and the entire audience an NFT, NFTs are a part of our daily media diet.

Beyond the hype of digital art NFTs, the ABCs of NFT promotions and business start with Adidas, Barbie, and Coinbase and range far and wide from there. Mattel and Balmain launched a multi-channel campaign highlighting a Barbie and Balmain collaboration for a ready-to-wear collection of Balmain clothing and accessories for Barbie. The promotion generated hundreds of articles and tens of millions of posts on social. It included an NFT auction whose winner was to receive the Balmain collection of Barbie attire.

Beverage companies are well represented in the NFT fray. With Budweiser, Coke, and Patron leading the way. Coca-Cola auctioned collectible NFTs to generate over $575K for the Special Olympics. Patron partnered with BlockBar to sell NFTs directly tied to a physical bottle of rare spirits that can be “burned” (redeemed) for the actual bottle of spirits in launching a direct-to-consumer spirits model.

Technical innovation has often been driven by and exercised by pornography. The pornography industry has driven VHS, compression technologies, even the internet itself, and now, pornographers are no stranger to NFTs. Playboy introduced nearly 12,000 NFTs called “Rabbitars” and hopes to capitalize on their massive library of images through other NFT releases. The Rabbitars promotion is a kickoff of the anticipated launch of their metaverse-based Playboy Mansion. OnlyFans, a subscription site where creators can share sexually explicit and other content, allows their users’ profile pictures to display NFTs.

Though critical of the metaverse in their recent Superbowl ad, even Salesforce has a business plan for NFTs. The enterprise software company announced its intention to launch an NFT Cloud service to its employees. Ostensibly, the NFT Cloud service would allow sales and marketing organizations to mint and manage NFTs.

Sadly, there’s a dark side to the NFT-craze. Bad actors are taking advantage of consumers and the brands they love in this new digital channel—and it’s easy to do so. New technologies are often easy for malicious actors to exploit. New users of digital wallets with limited understanding of how NFT marketplaces operate and the mechanics of auctions are easy to fool. And because NFTs are primarily digital representations, they are simple to duplicate and challenging for intellectual property owners to police. A recent article in the Wall Street Journal highlights that a large percentage of NFTs on the OpenSea platform are inauthentic uses of trademark and copyright-protected materials. There’s already ongoing litigation related to the inauthentic use of trademarks initiated by Nike and the makers of Birken bags.

What should marketers and their legal counsel do to promote and protect their brand in the realm of NFTs? Marketers should:

1. continue to innovate in new digital venues like NFTs in a way that delivers upon their brand promise;
2. use of NFTs to capitalize upon the buzz and novelty of the medium;
3. create unique experiences that personalize the brand for their brand fans through NFTs

There are other considerations for legal teams representing brands that want to use NFTs. I heard a few tips in conversations with boutique intellectual property-focused law firms Winterfeldt IP and Stobbs:

1. Review your IP portfolio and consider further trademark and copyright registrations to cement your hold on your intellectual property.
2. Ensure that your business partners use your intellectual property as an NFT.
3. Police the major NFT marketplaces and other online venues for misusing your protected IP.

In summary, Marketers need to capitalize upon the business momentum created by the interest in NFTs, and their intellectual property team needs to safeguard it.