A Manhattan federal jury has decided in favour of French fashion house Hermès in its case against an artist who used images of the company’s Birkin bags to create NFT artworks. It was decided that Mason Rothschild’s non-fungible token versions of the fashion house’s famous Birkin bags violated its trademark right.
This is one of the first times that trademark issues have been tried in court in relation to NFTs. The digital tokens, which can be bought and sold though the artwork they represent exists only in digital form, are viewed as an exciting new outlet for creativity, but it now looks as if artists will have to be more careful of the intellectual property questions they raise.
The jury in this case found that artist Mason Rothschild’s unauthorized “MetaBirkins” were likely to confuse consumers, and awarded Hermès $133,000 in damages for trademark infringement, dilution, and cybersquatting in the U.S. District Court for the Southern District of New York.
Hermès’ prized leather Birkin handbags typically sell for tens of thousands of dollars, and the company has sold over $1 billion worth of Birkins in the United States alone, including more than $100 million worth in the past ten years, according to court documents. But Mason Rothschild’s attorney Rhett Millsaps called the result a “terrible day for artists and the First Amendment.” Rothschild, real name Sonny Estival, created 100 ‘MetaBirkins’, depicting the bags covered in colourful furs, in what he said was “an absurdist statement on luxury goods”, and covered by First Amendment protectoins for art. He cited Andy Warhol’s famous soup tins and Coke cans, to which the informed observer might comment “You’re no Andy Warhol”.
Hermès in its lawsuit called Rothschild a “digital speculator” and the NFTs a “get rich quick” scheme, claiming that Rothschild began offering the NFTs at the Art Basel art fair in Miami in December 2021, and that by early the next month over $1m worth of them had been traded. This, the luxury house claimed, interfered with its own plans for NFTs.
Rothschild responded by calling Hermès “a multibillion-dollar luxury fashion house who says they ‘care’ about art and artists but feel they have the right to choose what art IS and who IS an artist”.
“This is far from over,” he added.
The case is Hermes International v. Rothschild, U.S. District Court for the Southern District of New York, No. 1:22-cv-00384.