- The trial between Hermès and MetaBirkins has concluded in favor of the French fashion luxury brand.
- The jury awarded over $100,000 in damages to the fashion house, settling that the NFT artist profited off Hermès’ goodwill by producing NFTs based on the brand’s iconic Birkin bags.
After a year-long trademark battle, the nine-person jury in the copyright infringement trial between Hermès and the 28-year-old NFT artist and creator of MetaBirkins, Mason Rothschild, has concluded in favor of the design house.
The jury decided that Rothschild’s NFTs diluted the fashion luxury brand and misled consumers into thinking the two brands were related.
Quick Recap
Mason Rothschild released a collection of 100 furry digital handbags called MetaBirkins in December 2021. Rothschild’s NFT collection paid homage to Hermès’ signature luxury handbag, Birkin, and extended on Rothschild’s successful NFT artwork, Baby Birkin, which raked in 5.5 ETH at an auction.
Rothschild shared that his project, MetaBirkins, was inspired by the acceleration of the fur-free initiatives in fashion and the rise of alternative textiles. At release, each MetaBirkins costs 0.1 ETH.
However, a month later, in January 2022, Hermès International filed a trademark infringement lawsuit against the budding artist, claiming that Rothschild stole the goodwill in Hermès’ IP to create and sell his line of products.
The NFT project reportedly made over $1 million in sales by January, despite Hermès sending a cease and desist letter in December 2021.
In response to the lawsuit, Rothschild justified his view on the MetaBirkins Twitter account, claiming he was not selling or creating fake Birkin Bags but instead ‘artworks’ depicting luxury bags covered in fur. Rothschild added that the First Amendment protected his NFTs.
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A statement in response to: Hermès International, et al. v. Mason Rothschild. pic.twitter.com/pil6brfGTl
— MetaBirkins (@MetaBirkins) January 17, 2022
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No Bags for You
After a year of defending himself against the trademark infringement allegations, the lawsuit came to trial on January 30th.
The case reportedly utilized the Rogers test to examine the balance between artistic expression and trademark infringement. During the trial, Hermès and Rothschild questioned trademark law and NFTs. Moreover, Experts provided testimonies focused on consumer confusion and brand dilution.
However, despite the artist’s justification, the jury did not pay heed and sided with Hermès. In the final verdict, the jury decided Rothschild’s NFTs were not subject to the First Amendment of the U.S. Constitution as the artist’s lawyers claimed.
In their closing arguments, Hermès’ trial team shared Rothschild’s Meta Birkin NFTs misled consumers into believing the two brands were colluding. Moreover, the lawyers asserted that using the Birkin name in the NFT collection diluted the Hermès brand.
The jury awarded $133,000 in damages to Hermès, siding with the fashion brand’s lawyers.
In response to the verdict, Rothschild shared his disagreement on Twitter, claiming the case will set a negative precedent for artists in the future surrounding creativity and intellectual property.
Take nine people off the street right now and ask them to tell you what art is but the kicker is whatever they say will now become the undisputed truth. That’s what happened today.
A multibillion dollar luxury fashion house who says they “care” about art and artists but..
— Mason Rothschild
(@MasonRothschild) February 8, 2023
(@MasonRothschild) On the Flipside
- Rothschild’s defense team summoned Dr. David Neal, managing partner and founder of Catalyst Behavioral Sciences, and Dr. Bruce Isaacson to determine if there was any confusion between Hermès’ Birkin bags and MetaBirkins NFTs. Dr. Neal’s results showed that 9.3% of those tested were confused between the two brands.
- Hermès’ Birkin Bags range from $12,000 to $200,000. MetaBirkins initially sold the NFTs for $450 each. Rothschild reportedly made around 55.2 ETH or approximately $90,000 at press time.
Why You Should Care
The MetaBirkins vs. Hermès case is the first and most prominent lawsuit examining trademarks and NFTs. The lawsuit brought into question whether trademark rights extended to the digital sphere. The verdict will set a legal precedent for trademarks, NFT creators, NFTs, and digital creators in the future, building a framework for intellectual property that the space lacks.
While Hermès has yet to establish its presence in Web3, read how its rival, Gucci, is:
Gucci Sets up Shop in The Sandbox Metaverse, Bringing Games, Vintage Fashion, and More.
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