Perhaps, but as long as you're not on YouTube which will take you down regardless, brilliant satire like this is the one thing courts usually respect when it comes to fair use.

I'm not a lawyer but I'm fairly certain this wouldn't be covered by fair use laws because the site is a commercial entity directly selling something with a trademarked name for profit. I think you'd have a hard time arguing this one in court.

Also not a lawyer but I think the problem here is that the thing being satirized (NFTs) is not Olive Garden and so they don't get protection from the olive garden copyright. Eg this satire of the OJ Simpson trial done in the style of Dr Seuss: https://www.imaginelaw.com/cat-in-the-hat-parody-infringes-o...

Hmm, valid analogy. Arguably they're satirizing Olive Garden as well, here, though? Alternatively, the creator could crank up their Olive Garden satire a little more to pass this test?

Trademarks are primarily about consumer confusion. Arguing that it's clearly not sanctioned by olive garden isn't that hard. And they're not competing with olive garden in any markets.

Does Olive Garden have a trademark in this domain? Trademarks are limited by the area they operate in, which is why you had Apple Music (the label) and Apple Computers side by side for years.

Also see https://www.nissan.com/, which Nissan (the car company) has had legal proceedings with for years, bullying a company that has the same name because they want their domain. So far, unsuccessfully.

I don't know what class this falls under, but unless Olive Garden has a trademark in class 38 or class 42, I don't think trademarks will give them the legal ability to take the website down.

What will help them take the website down is the ability to bully a small project into submission by filing all kinds of lawsuits to basically out-lawyer them. You can only get justice if you're rich, after all. I think a cease and desist will be quickly accepted to avoid the inevitable tens or even hundreds of thousands of dollars in legal fees for a full-on lawsuit.

They are claiming the NFT represents "An Olive Garden Franchise" and saying things like "While every Non-fungible Olive Garden is tethered to a real Olive Garden... "

It's going to be pretty difficult to argue that their statement "granting owners no rights or privileges in meatspace Olive Gardens" is sufficient.

would be a great case about the legality of crowdsourced leveraged buyouts.

What I have heard from a lawyer specializing in IP law is that the definition of "satire" as it applies to fair use in US courts is actually far narrower than people usually use. To qualify as "satire," it would specifically have to "comment on the original work"--commenting on, say, the author of the work would not qualify it as fair use.

Indeed, I suspect there's a good case for fair use as parody or satire (but I'm not a lawyer and this HN comment should not be interpreted or used as legal advice).

Super hard to argue parody or satire when you're making real money from it.

I am guessing then that Starbucks would have sued Dumb Starbucks eventually[0] if it didn’t shut down so quickly.

“ Starbucks did not pursue legal action, although it did note to the press that it was "evaluating" the possibility while reinforcing that the "Starbucks" name is a protected trademark. Upon the episode's broadcast, it was acclaimed by television critics.”

https://en.m.wikipedia.org/wiki/Dumb_Starbucks

I would think so. Starbucks was likely evaluating who put the surpringly well put together satire store up, and whether it was just creating good press for them. And then comedy central(or maybe Absolutely productions) heard SB noticed and decided the joke run its course and it was better to avoid a suit. Eventually though, I assume Starbucks would also decide the joke run its course and it's more important to protect IP than let some production company keep running the joke.

They can be removed from centralized marketplaces like opensea, though. Of course people can still interact with the contract directly no matter what.

Making satire about Olive Garden would be fair use. Using Olive Garden to make satire about NFTs is not fair use.

They can take the site down but he NFTs can't be removed at this point

If blockchains weren't so inefficient, there'd be an interesting debate about the difference between something being fully removed versus simply being unavailable to many people to comply with legal requirements. Since they're not capable of storing even a modest JPEG, of course, that's moot since the referenced host would be the target of a takedown.

If this wasn't a joke, it would make an interesting demonstration of how the value is purely the current social consensus: a receipt is of dubious value in any case but it would be especially unlikely to attract buyers when the target URL has been DMCAed.

The images themselves are typically hosted on IPFS or another Blockchain file store so they too can't be removed

IPFS is not magic: it runs on servers and people have to pay for storage and bandwidth. If you're not regularly paying those people, your content will disappear unless it's among the most popular and not legally encumbered.

If something is taken down for legal reasons, you're left with intersection of hosts who are in legal jurisdictions where they can blow off those complaints, don't have their IPs blocked, and are willing to host it for whatever you want to pay.

That's not impossible but it's far from the solved problem NFT salespeople present it as, increasing in difficulty with the value of the content.

The JPEGs could go on filesharing networks. The NFT holders have an incentive to reseed them when necessary.

Sure, but you have to pay a fairly large fee for every transaction and since it's public the process of sending takedown notices can easily be automated. Are the bragging rights for a receipt really worth playing that game until you run out of money even if you do live in a jurisdiction where you can do that indefinitely without consequence?

What I mean is, the NFT is implemented on a blockchain and holds the hash of the jpeg, but the jpeg can be hosted on a regular non-blockchain filesharing network for free. If it disappears then the NFT holder can just post it again, also for free. You only pay blockchain fees when you transfer NFT ownership.

The jpeg could be on IPFS, bittorrent, freenet, whatever. Look it up by hash and verify the hash after getting it. If takedowns are a problem, use the more censorship-resistant options.

Weirdly the NFTs being forever is an argument in their favor. As hilarious as this whole charade is.

did you not read Stage 7?:

> Use project funds to complete leveraged buyout of Darden Restaurants, Olive Garden's parent company

I don't think DMCA is for trademark protection which is what this would be infringing.

It does raise some interesting issues though. If Olive Garden is successful in any challenge of this where do the NFTs go?

Are all the owners of the illegally trademarked NFTs responsible for destroying them or transferring ownership to Olive Garden? Given that their continued existence can imply that Olive Garden supports NFTs, which may damaging to their brand, how do they legally exercise their rights to remove their association with these NFTs?

I wonder if the law regarding trademark counterfeiting could be stretched to cover this case.

More like this is a brilliant Social Media marketing campaign and huge bit of free PR for OG.

I'm suspicious it was made by an agency at their behest.

DMCA: no.

Taking down the site and taking the domain name: yes.

https://www.broadbandcloudsolutions.co.uk/what-happens-if-yo...

In this thread: Armchair HN wannabe lawyers incorrect each other about trademark law and fair use.

this is fair use

no, it isn't. that's for news, criticism, research, and reporting.

https://guides.nyu.edu/fairuse

https://www.copyright.gov/fair-use/more-info.html