[dcolkitt]

Any speculative profit you hope to make on buying a limited edition Rolex is entirely reliant on the business of Rolex continuing to market the brand of Rolex.

But if you don't have a formal contractual relationship with Rolex SA, then it's quite simply not an investment contract.

[jakelazaroff]

> Any speculative profit you hope to make on buying a limited edition Rolex is entirely reliant on the business of Rolex continuing to market the brand of Rolex.

That is not at all true. Rolexes will continue to accrue value even (especially?) if the company goes out of business.

[scg]

To the extent that the Rolex brand has a certain inertia that will propel it further even after the company ceases to exist, that inertia can be attributed to company's previous marketing efforts.

Indeed, the brand may retain value for some time even if the company goes out of business, perhaps even for a very long time. Nevertheless, that doesn't negate the fact that ongoing marketing efforts can amplify the brand's value and momentum, and the brand's inertia will be even stronger should the company cease to exist.

Another way to look at this is to put yourself in the shoes of a prospective buyer in 1923. Wouldn't you say in that situation you rely on the company's continuing marketing efforts to further the value of the brand? At what point in the last 100 years do you stop relying on the company's efforts?

Also, Rolex can easily destroy brand value with ill-considered promotional campaigns, so you rely on the company to not mess it up.

[jakelazaroff]

I think if you have to go a full hundred years in the past to make this point, we can probably agree that for any prospective buyer today the speculative value of their limited edition watch doesn’t depend on the company continuing to exist during their lifetime.

[scg]

The 100 years isn't the issue here, nor Rolex in particular. Replace Rolex with a contemporary brand and dcolkitt's point stands even more clearly. There is nothing in the law that makes a distinction between a Rolex watch and some other brand that people may purchase hoping it will garner prestige someday through present-day marketing efforts. It would be absurd to make that distinction.

The salient point is many things may be purchased for "speculative profit you hope to make [...] reliant on the business", but that by itself doesn't make them securities according to the law, so it's just not the right test to use.

[nonethewiser]

Maybe.

[unyttigfjelltol]

A Rolex is a tangible art object that also performs a useful function. If, on the other hand, the issuing company sold NFTs with no tangible, functional, or aesthetic component and somehow sold people on the idea Rolex the company was going to pump these otherwise useless bits and bytes to the moon, then you're actually talking about something analogous to crypto.

[dcolkitt]

There's literally nothing in existing law that identifies tangibility as a specific criteria for what constitutes a security and what constitutes a commodity. In fact both the CFTC and SEC are specifically on record as saying Bitcoin constitutes a commodity. And obviously Bitcoin is as intangible as it gets.

[unyttigfjelltol]

The Howey test's 4th prong refers to the value being derived from the work of others. When we're talking about a "commodity" that is intangible with no real-world application, function or value, respectfully those attributes are suggestive that the value derives from the "work of others." Maybe you and I and the SEC don't necessarily know the scope of the enterprise, but useless bits and bytes don't generally acquire value spontaneously so if one of them like ... XRP ... suddenly goes to the moon ... it certainly is suggestive because there's no other reasonable explanation.