A trademark infringement trial between French luxury brand Hermès and digital artist Mason Rothschild is set to proceed January 30 in Manhattan federal court.
The luxury brand has accused the non-fungible token (NFT) artist of trademark infringement for promoting and selling MetaBirkins, an NFT collection said to be inspired by the collection’s Birkin bags.
The trial and related lawsuit in the United States District Court for the Southern District of New York can be traced back to January 14, 2022, when Hermes filed a complaint against Mason Rothschild after the artist refused to stop selling his NFT collection.
MetaBirkins depicts Birkin bags covered in colorful fur instead of leather. Source: MetaBirkins Twitter
According to court documents filed on January 23, Hermès says the group improperly used the Birkin trademark and may have confused customers into thinking the luxury brand was backing the project.
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Meanwhile, court documents also revealed that Rothschild believes his work is protected by the First Amendment — which allows no restrictions on free speech.
A number of intellectual property attorneys and legal experts have commented on the upcoming days of the trial, noting that the case may have implications for the NFT industry.
Laura Lamansky, partner at law firm Michael Best & Friedrich LLP, called the case “a critical turning point for Web 3 and digital goods” in a Jan. 18 post discussing the experiment and its potential implications for the future of the NFT industry.
The question remains: To what extent can physical brands be applied in the digital world? We will be watching this situation closely to determine how best to promote rights in the digital realm.”
“We hope it sheds some light on how artwork and the First Amendment interact with consumer goods and NFTs and how far trademark rights to their brands or products extend into the digital space,” added Lamansky.
Related: A ‘wave of litigation’ to hit the NFT space as copyright issues abound
Blockchain and technology attorney Michael Kasdan is also pursuing the case, but he doesn’t seem to think the outcome will be very significant.
“Ultimately it will be a single district court case data point but it sure is interesting,” he said.
Brands and companies have begun cracking down on NFT projects that they claim violate copyright, intellectual property, and trademark rights.
On February 4, 2022, StockX was sued by Nike for trademark infringement as the online seller allegedly created NFTs modeled after Nike sneakers.
In September 2022, film director Quentin Tarantino settled a Miramax lawsuit after a base-layer blockchain provider, Secret Network, auctioned “uncut screenplay scenes” from Tarantino’s 1994 Pulp Fiction as NFTs.
