‘MetaBirkins’ NFT creator loses trademark fight with Hermès

A New York jury says that selling “MetaBirkins” non-fungible tokens violates the trademark of luxury brand Hermès. Bloomberg Law reported this morning on the outcome of the trial, a potentially landmark decision in the confusing world of NFT intellectual property. The jury awarded Hermès $133,000 and determined that the tokens aren’t First Amendment-protected speech, contrary to the argument of their creator, Mason Rothschild.

Hermès sued Rothschild over MetaBirkins in early 2022 during a boom in crypto-related projects. Like numerous other NFT projects, MetaBirkins paired unique digital tokens with themed pictures — in Rothschild’s case, 100 pictures of nonexistent Birkin luxury bags covered in faux fur. Rothschild argued in court that his work hewed to a long-standing tradition of artists depicting branded products, including Andy Warhol’s images of Campbell’s soup and Coca-Cola, and “comments on the animal cruelty inherent in Hermès’ manufacture of its ultra-expensive leather handbags” with its fur design. “These images, and the NFTs that authenticate them, are not handbags; they carry nothing but meaning.”

Hermes argued that the series “simply rips off Hermès’ famous Birkin trademark,” calling Rothschild “a digital speculator who is seeking to get rich quick by appropriating the brand.” Rothschild apparently earned around 55.2 Ethereum tokens, currently around $91,000, from his work. (The tokens would have been worth about double that when the suit was filed.) And Hermès argued that MetaBirkins would make it harder for Hermès to potentially offer its own NFTs in the future.

NFTs and crypto are much less popular than they were in late 2021 and early 2022. So the case’s immediate impact is less dramatic than it would have been during their market peak. But intellectual property disputes over NFTs are common, and the Hermès win could affect future cases. Nike, for instance, has sued reseller StockX for hawking NFTs as digital receipts alongside its running shoes. It could also make artists leery of selling tokens based on well-known brands in the first place — although the NFT crash might be an even bigger disincentive.