Hermès won its lawsuit against creator Mason Rothschild for violating a trademark by selling NFT ‘Meta Birkins,’ a collection of digital images that riff on the French fashion house’s coveted status bags (whose prices just went up).
Created by Mason Rothschild, MetaBirkins portray Hermès Birkin bags made in fur, with bright colors and playful designs. In 2021, he began selling the Birkin NFTs over his website. Rothschild sold 100 NFT MetaBirkins for $450 and received 7.5% of secondary sales — totaling roughly $125,000.
Hermès sued Rothschild in 2022, arguing that the only reason the NFTs were purchased was because of the Birkin name, which implied a nonexistent connection to the luxury label. On the flip side, the creator reasoned that the NFTs were art and should therefore be protected by the First Amendment, much like Andy Warhol’s paintings of Campbell’s soup cans.
But a nine-person jury in Manhattan Federal Court disagreed, ruling that the digital images are not, in fact, art. The ruling is notable because it is apparently the first trial to consider intellectual property infringement by NFTs — and if NFTs are not considered art, it will be much more challenging for creators to “nod” to established brands without legal repercussions.
Hermès was awarded $133,000 in damages, $100,000 for intellectual property infringement, and $23,000 for cybersquatting, or using a domain name similar to that of Hermès.