Trademarks & branding for DeFi / DAOs

Q&A
1

Has anyone done good work on whether a DAO with no entity “wrapper” can own a trademark or trade dress?

I’m not interested in issues of unincorporated association vs. entity. Just assume for this purpose that the DAO is some sort of unincorporated association with legal personhood.

Is there nevertheless a problem under IP law? Trademarks are meant to “identify the origin of a good or service”. Is a DAO the origin of the good (smart contract software)? Not really, unless the DAO predates the “protocol” (unlikely, maybe there are some exceptions). Is the DAO the origin of a “service”? Again, I don’t think so…if there is a service it’s being provided by miners or validators to operate the smart contracts.

Maybe the DAO provides a ‘governance service’ and that is what is TM’d?

Appreciate any (good) thinking around this people might be able to share.

2

I assume you’ve read and are referring to the case described here? Unincorporated Associations Can Protect Unregistered Trademarks Under The Lanham Act | Nossaman LLP - JDSupra

Had the unincorporated association in that case been an unwrapped DAO instead, would it have fared any differently?

If members of a DeFi DAO debate whether their smart contracts should pay protocol fees to token holders or pay everything to liquidity providers, vote on this issue, then put the results of the vote into new DeFi contracts, isn’t that a service capable of being protected by trademark?

I think it would, but I’m not an IP lawyer.