New cryptocurrencies and tokens have been popping up all over the place, leading the SEC to set up an initial coin offering (ICO) section on its website and to promote recent enforcement actions in the digital currency space. The proliferation of new tokens offers a growing opportunity for cross-over and cooperation between different federal agencies. The SEC representative at a recent Bar Association of San Francisco panel last week noted that the SEC’s cyber unit is currently looking at dozens of new cryptocurrency or crypto market enforcement actions, including quite a few with the local U.S. Attorney’s office where fraud is implicated.
Recent cyber unit enforcement actions have addressed fraud and alleged dishonesty in conjunction with fundraising and ICOs, but don’t really focus on distributed ledger or blockchain technology applications. Cases have been brought against founders who ran into trouble regarding misrepresentations of their currency’s security, ICO registration status, financial projections, coin backing by other investments, and even executive biographies. These recent enforcement actions, and in some cases criminal charges, stem not from a unique feature of a distributed ledger, but rather the SEC’s long-standing interest in policing representations made to shareholders and investors.
The abundance of new tokens is not only implicating securities and criminal enforcement interest, it’s finding its way into other more conventional litigation arenas well, including, in a case currently pending before Judge Oetken in SDNY, trademark infringement in an Lanham Act suit: Alibaba Group Holding Ltd. vs. Alibabacoin et al. In the Alibaba case the Chinese behemoth plaintiff is suing, and has sought an injunction against, Alibabacoin, a post-ICO company now allegedly in the process of rebranding to ABBCoin. A few weeks ago and across the country in our backyard, Judge Breyer granted Telegram Messenger’s motion for a preliminary injunction against a defendant who had applied for a trademark for GRAM, the name Telegram had already given to its forthcoming cryptocurrency. Judges are applying conventional trademark infringement analyses to these disputes, and they show the way in which cryptocurrency facts have already permeated the more conventional litigation and enforcement landscape.
As both the Alibabacoin and the GRAM outcomes show, the bigger companies are likely to push emerging currencies to rebrand rather than get dragged into pitched battles over brand identity. But if there is no such thing as bad press, perhaps the initial lift from an association with a big name company will make it worth the litigation risk. Any such association—or litigation for that matter—could draw the SEC’s or other enforcement agencies’ attention. That would be an unwelcome side effect, but likely one that simply goes into the cost-benefit analysis the emergent crypto offerors should be doing anyway.