The digital economy has not changed the principles of trademark law, only how they are applied in practice. Trademarks and designs are protected under the same rules as 20 years ago, but online marketplaces, social media and NFTs have created a scale and speed of infringement that did not exist before. This article reviews how courts in the EU and the US resolve new disputes and what this means for businesses that need to protect their trademark.

What is the difference between a trademark and a design?

A trademark and a design are two different intellectual property objects that protect different elements of your business.

Trademark – any sign whose primary purpose is to distinguish the goods or services of one person from those of another. Protection lasts 10 years and can be renewed indefinitely (Republic of Lithuania Law on Trademarks No. VIII-1981; EU Regulation 2017/1001).

Design – the appearance of the whole or part of a product, resulting from the product itself and/or its ornamentation, lines, contours, colours, shape, texture or material properties. A registered design is protected for up to 25 years.

A trademark can be more than a name or a logo. The colour “Barbie pink” is registered as a trademark and all rights to it belong to Mattel. The rights to the phrase “This sick beat” belong to Taylor Swift. Even Darth Vader’s breathing sound is protected as a sound trademark.

Why does the internet break the old intellectual property rules?

Intellectual property rights are territorial – they apply only in the countries where the mark or design is registered. The internet ignores such borders: anyone, anywhere can sell to anyone, including counterfeiters.

This conflict between territorial law and global trade is the core IP problem of the digital economy. The infringer often operates in another jurisdiction, so obtaining a court judgment is one thing and actually enforcing it is another.

Is an online marketplace liable for counterfeits?

Yes – in certain cases an online marketplace can be liable for counterfeits sold by third parties. EU and US courts approach this question differently.

In Louboutin v. Amazon (CJEU, 2022), the Court of Justice of the European Union ruled that Amazon can be held liable when its platform creates the impression that the company itself is selling the goods. Decisive weight was given to Amazon’s uniform branding, “Ships from Amazon” labels, customer service and returns – the consumer cannot tell who is actually selling. Earlier, in L’Oréal v. eBay (CJEU, 2011), it was established that platforms must act when notified of counterfeits.

Since 2024, the EU Digital Services Act (DSA) has imposed formal notice-and-takedown obligations, a “trusted flaggers” status and seller identity (KYC) requirements.

EU vs US: marketplace liability for counterfeits

What is “dupe” culture and why is it risky for trademarks?

Dupe – a cheap lookalike of a product or design that avoids the logo but copies the overall look. Legally this often falls under design and trade dress protection rather than trademark protection.

Shein introduces around 6,000 new product designs per day – a pace that makes infringement practically impossible to police. The company has been sued for systematic copying by Levi’s, Ralph Lauren, Nike, Dr. Martens and dozens of independent designers; a 2023 lawsuit even described the activity as organised copying.

On social media, the hashtag #dupe has gathered billions of views. In 2024, Walmart sold an approximately USD 80 lookalike of the Birkin bag, nicknamed the “Wirkin” – while the original Hermès bag costs about USD 10,000. By the time a brand’s lawyers react, the trend has often already moved on.

Do trademarks apply in the metaverse and NFTs?

Yes – trademark rights also apply to digital products if the consumer may be confused about the origin of the goods. In Hermès v. Mason Rothschild (2023), a US jury found that the “MetaBirkins” NFTs infringed and diluted the Hermès trademark, and awarded USD 133,000 in damages. The creator’s defence that it was art protected by free speech was rejected.

In Nike v. StockX (ongoing), the question is whether NFT-linked sneakers are “real” products that infringe Nike’s trademarks. Brands such as Gucci, Nike, Prada and Hermès are already registering signs for virtual goods in Nice class 9. Whether a virtual handbag is a “good” for trademark law – different courts answer differently for now.

How do you protect a trademark and design in several countries?

International protection is administered by the World Intellectual Property Organization (WIPO). A single application can seek protection in many countries.

• Madrid System – for trademarks, covers more than 130 countries.
• Hague System – for designs, covers more than 90 countries.

It is important to understand that each country applies its own substantive law, and stopping infringements remains a national problem. Which countries to register in first can be assessed with the guidance on choosing the country of trademark registration.

What are the consequences of failing to protect a trademark online?

An improperly protected trademark means concrete financial and reputational risk. There are two common situations in practice.

1. When partners become enemies. Co-owners build a brand together, then the relationship breaks down – and each rushes to register the mark first or to invalidate the other’s registration.
2. An unregistered mark and a hit product. The product becomes successful, and a competitor or “squatter” registers the name first. Apple paid about USD 60 million for the “iPad” trademark in China, and Burger King had to rebrand to “Hungry Jack’s” in Australia.

Read more about intellectual property infringements and prevention and trade in counterfeits in separate articles. On the use of trademarks in the digital space, see trademarks on social media.

How does METIDA help protect a trademark in the digital economy?

METIDA is one of the largest trademark and design representatives in the European Union. Our patent attorneys represent clients at national, EU (EUIPO) and international (WIPO) level. If you plan to protect a trademark or design, start with the trademark registration or design protection guidance.

This article is based on a lecture by METIDA patent attorney and IP lawyer Martynas Šukevičius, “When Brands Meet the Internet: IP Challenges in the Digital Economy.”