On February 8, A jury from the Southern District of New York reached a verdict in Hermès’s lawsuit against MetaBirkins. The court ruled that the artist Mason Rothschild had violated the protection of the Hermès trademark. Rothschild’s 100 “Metabirkins” NFTs were found not to be artistic commentary and therefore not protected by the First Amendment to the US Constitution.
According to a Vogue Business story, a nine-member jury found Rothschild liable for trademark infringement, brand dilution and “cybersquatting,” awarding Hermès $133,000 in damages. It is the first time that a court has addressed the relationship between digital art, NFTs and physical fashion. Hermès argued that NFTs represent a new category of product, while Rothschild argued that there is no such thing as a digital twin. Rothschild has stated that he intends to appeal the verdict.
In response to the court’s decision, the artist used his Twitter account to express his disappointment. He shared it:
“A broken judicial system that doesn’t allow an art expert to talk about art but allows economists to talk about it. That’s what happened today. What happened today is wrong. What happened today will continue to happen if we don’t We keep fighting. This is far from over.”
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
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 lawyer Michael Kasdan, who has been following the case for some time, has shared his thoughts on the ruling on Twitter. According to him, “it would have been more surprising and a ‘big deal’ in terms of changing the status quo if the Rothschild had won.”
My 2 cents FWIW on the #Hermes v Rothschild #MetaBirkins truth:
I’m not terribly surprised the jury found for Hermes. And I think it was probably the right result. Anecdotally, when people I knew heard or saw “MetaBirkins,” many did think “Oh, that’s Hermes.”
/1
THREAD https://t.co/KuWEhKmuR2—Michael Kasdan (@michaelkasdan) February 8, 2023
As Cointelegraph previously reported, court documents filed on January 23 revealed that Hermès believed the collection misused the Birkin trademark and potentially misled customers into believing that the luxury brand supported the project.
In September 2022, Cointelegraph spoke to David Kappos, a partner at Cravath, Swaine & Moore LLP, who noted that the tension between Intellectual Property (IP) and decentralization does not have a clear resolution. When asked about third parties creating digital artwork or accessories for branded products, Kappos advised that “An unlicensed implementer in a Web3 environment should refrain from creating a plug-in that is confusingly similar to a trademark owned by a third party – the same as in the real world.”
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