On Feb. 8, a jury trial in the Southern District of New York reached a verdict in Hermès’ lawsuit against MetaBirkins. The court ruled that the artist Mason Rothschild had violated the trademark protection of the Hermès brand. Rothschild’s 100 “Metabirkins” NFTs were found not to be artistic commentary and therefore not protected by the First Amendment of the US Constitution.
According to a report by Vogue Business , a nine-member jury found Rothschild liable for trademark infringement, trademark dilution, and “cybersquatting,” awarding Hermès $133,000 in damages. Notably, the decision is the first time the relationship between digital art, NFT, and physical fashion has been addressed in court. Hermès says NFTs are a new product category, while Rothschild says there is no digital twin. Rothschild said he plans to appeal the verdict.
In response to the court’s decision, the artist took to his Twitter account to express his disappointment. He shared:
“A broken justice system that doesn’t allow art experts to talk about art but allows economists to talk about it. That’s what happened today. What happened today is wrong. What’s happening now will continue to happen if we don’t continue to fight. This is far from finished.
Take nine people off the street right now and ask them to tell you what art is but the kicker is that whatever they say now will be the undisputed truth. That’s what happened today.
A multibillion dollar luxury fashion house that says it “cares” about art and artists, but…
– Mason Rothschild (@MasonRothschild) February 8, 2023
This case is expected to have far-reaching implications for the use of NFTs by artists and for the protection of intellectual property in the metaverse. Blockchain and technology attorney Michael Kasdan who has been following the case for some time now shared his thoughts on the decision on Twitter. According to him, “There will be more surprise and a ‘greater deal’ about changing the status quo if the Rothschilds win.”
My 2 cents FWIW on that #Hermes v Rothschild #MetaBirkins verdict:
I’m not too surprised that the jury found Hermes. And I think this is probably the right result. Anecdotally, when people I know hear or see “MetaBirkins,” most of them think “Oh, that’s Hermes.”
/1
THREAD https://t.co/KuWEhKmuR2— Michael Kasdan (@michaelkasdan) February 8, 2023
Related: Intellectual property has an awkward fit in decentralized Web3 – Lawyers
As previously reported by Cointelegraph, a court document filed on January 23 revealed that Hermès believes that the collection does not properly use the Birkin trademark and may confuse customers into believing that the luxury brand supports the project.
In September 2022, Cointelegraph spoke with David Kappos, partner at Cravath, Swaine & Moore LLP, who noted that the tension between Intellectual Property (IP) and decentralization does not have a clear solution. When asked about third parties creating digital artwork or wearables from branded products, Kappos advised that “unlicensed implementers in the Web3 environment should refrain from creating wearables that are confusingly similar to brands owned by third parties – similar to real. world.”