At the end of 2021, Mason Rothschild launched a series of 100 MetaBirkin NFTs, paying tribute to the luxury Birkin bags by Hermès. The collection, featuring faux fur purses resembling the iconic accessories by the legendary French fashion house became subject to a 47-page lawsuit from Hermès International to Mason Rothschild. On February 8th a month-long trial finished with the plaintiff's victory.
According to the accusation, the fashion house called Rothschild "a digital speculator who is seeking to get rich quickly by appropriating the brand Metabirkins for use in creating, marketing, selling, and facilitating the exchange of non-fungible tokens." Moreover, Hermès argued that MetaBirkins NFTs are “likely to cause consumer confusion and mistake in the minds of the public.” And, of course, the luxury brand noted that the creator has gained a hefty profit from the unauthorized use of the company's name through trading its NFTs.
Replying to the argument, Mason Rothschild said that the artist should be allowed to “create art based on his[his] interpretations of the world around him,” citing Andy Warhol’s Campbell Soup Cans series as an example.
But, regardless of the efforts made, the nine-person jury in the copyright infringement trial between Hèrmes and Mason Rothschild ruled in favor of the French luxury fashion house. Thus, according to Bloomberg, the jury awarded $$133,000 in damages to Hermès. The court also decided that MetaBirkins were not protected under the First Amendment of the U.S. Constitution, as Mansion Rothschild's lawyers had argued during the trial.
Indeed, today the luxury physical Birkin purses range from about $12,000 up to a whopping $200,000. As for their digital interprets, initially, each MetaBirkin NFT was sold for about $450 apiece, but their resale value soared to tens of thousands of dollars.
Summing up everything above stated, the First Amendment, paired with the decentralization provided by the blockchain, is not enough to protect those creators who aim to use physical brand names and their goods in the NFT creation process.
After the trial, Rothschild posted a Twitter thread devoted to the precedent, where he speaks about creativity, artistic expression, freedom of speech, and IP protection. From now, the NFT creators would better think twice before taking up endeavors that could be considered potential trademark infringement.