Virtual marks, real rights: a comparative analysis of trademark protection for non-fungible tokens in the United States and the European Union

This dissertation asks whether United States and European Union trademark law can adequately address the challenges posed by non-fungible tokens in decentralized environments. Through a comparative analysis of US and EU law, it examines how core legal doctrines like distinctiveness, infringement, and fair use are being reinterpreted in this new context. The analysis first clarifies that the legally relevant “mark” is not the NFT itself, but the consumer-facing signs (names, logos, and images) presented in digital marketplaces. Protection attaches to these perceptible signs, not to the underlying cryptographic token. This critical separation between the technical record and the commercial signal provides the foundation for evaluating the existing legal frameworks. The comparison finds that, ex ante, both jurisdictions can accommodate NFT-related marks, provided administrative practices become more technologically aware. This involves adopting a functional approach to classification that aligns virtual goods with their real-world market substitutes, rather than concentrating them in a single, overly broad class. Ex post, the core doctrines of infringement and dilution remain adequate but require calibrated application by the courts. This means learning to weigh new evidentiary factors, such as on-chain provenance signals, the context of the digital platform, and the unique sophistication of consumers in these markets. The balancing of free-speech rights, particularly for expressive or artistic works, continues to be a key point of divergence between the US and the EU. The central finding is cautiously optimistic: no wholesale legislative reinvention is required. Instead, a disciplined and functional interpretation of existing trademark law, one that separates the token from the sign and focuses on consumer perception at the digital interface, renders the current frameworks in both the US and the EU fit for purpose.