How to Do Everything Wrong

Near the beginning of 2022, a bunch of people who should know better, including indie record label owner Rory Felton, launched a website at to sell . . . well, that’s not really clear.

Here’s what it said on the website: [1]

HitPiece lets fans collect NFTs of your favorite songs. Each HitPiece NFT is a One of One NFT for each unique song recording. Members build their Hitlist of their favorite songs, get on leaderboards, and receive in real life value such as access and experiences with Artists.

“One of One NFT for each unique song recording . . ..” So HitPiece is selling the only NFT for each song?

No. They aren’t. So they must be selling “real life value such as access and experiences with Artists . . .”

Nope. HitPiece never had a deal with the artists.

When recording artists got wind of what was going on, they were understandably quite a bit less than happy.

Let’s tally up what HitPiece did wrong:

1. Seriously pissed off everyone HitPiece needs to make happy in order for HitPiece’s business to succeed. After taking down the offending material, HitPiece’s website showed only this statement: “We Started The Conversation And We’re Listening.” Something about horses and barn doors comes to mind.

2.  Some of the names of the artists are trademarks so using those names in connection with selling anything related to entertainment is trademark infringement.

3. HitPiece was also probably using imagery from album covers, which would be copyright infringement. (Full images don’t appear on the WayBack Machine® for the site but it looks like they were.)

A hat trick of bad choices!

While it isn’t clear what HitPiece purported to sell, it’s painfully clear it never owned whatever it is. Brilliant.

Shout out to Cassandra G. for letting me know about this fiasco.

[1] Taken from an image of the HitPiece website from the WayBack Machine®.

I ❤️ Trademarks

Image for Reg. 3097782

The New York State Department of Economic Development owns 13 live registrations for I ❤️ NY in a variety of colors and orientations and for a bunch of different services and goods, including promoting tourism and a slew of swag.

The NYDED first used the mark in 1977.

Is it OK for someone to use I ❤️ BURLESQUE?

The answer to that question explains why I can’t know whether a trademark’s available without doing a comprehensive search. I can guess, but my guess isn’t always right.

Before digging into the Trademark Office database, I thought: The NYDED’s trademark is famous so anyone using something similar for any goods or services is going to be in a world of hurt.

Image for Reg 6390592

When I started digging, I was surprised to find there are lots of other registrations using the same design with the same color, orientation and font.

For example, there’s this trademark, which was registered in 2021 for T-shirts and other swag. The Trademark Office didn’t refuse to register this trademark and, even more surprisingly, the NYDED didn’t try to oppose it.

Based on that, I’d guess the I ❤️ ____________ motif is fair game as long as what’s in the blank isn’t already being used by someone else.

But, of course, I’d have to check the specific use for the specific goods just before filing, because it’s easy to be wrong when I guess.

Thanks for another great question from Cassandra G.