Hermes sues ‘MetaBirkins’ NFT-creator over Trademark issues

Filed on January 14, 2022, the case is regarding the release of the NFT collection based on Hermes Birkin bags.
The 100 NFT collection shows bags covered in colorful furs.

The Fashion industry is not new to controversies and piracy. On Monday, Hermes International SCA urged a United States Jury to book an NFT collection’s creator for violating their trademark Birkin bags. The lawyers at “MetaBirkins” countered the allegations saying the images were art.

Rothschild sold series of 100 NFTs called MetaBirkins depicting fur-covered purses in the same shape & style as Hermès. H is seeking to stop Rothschild from using its brand & destruction of the NFTs. Case goes on trial on Monday…https://t.co/Mtc0nwk1Lq
— Max Dilendorf (@MaxDilendorf) January 29, 2023

In 2022, the french fashion house sued Mason Rothschild for recovery of profits, the latter made by selling NFTs portraying Birkin bags covered in colorful fur. The act was done without asking Hermes’ permission, and the claims are that Rothschild tried tricking customers into thinking there was a partnership between them for selling digital assets.

Oren Warshavsky, a Hermes lawyer, spoke to the jury during the closing arguments in the federal court in Manhattan after five days of testimony, “He wanted to cash in on Birkin’s name.” At the same time, Rhett Millsaps, Rothschild’s lawyer, said in the closing arguments that the NFTs were just an “artistic experiment” protected by the United States Constitution’s First Amendment.

Further explaining that no attempt was made to mislead anyone with the notion that MetaBirkins come from Hermes. The case is very important as it highlights the potential for clarifying the trademark laws’ application and execution in the NFT arena. These digital assets can be used to verify the artwork’s authenticity.

At the time of the launch, Hermes was also working on bringing Birkin NFTs to the market and accused Rothschils of “cybersquatting,” an attempt to beat the company in the market by releasing the product first. This lawsuit would not have been filed had Rothschild compiled a December 2021 letter demanding cease-and-desist. Although after receiving the letter, they put a disclaimer denying any association with Hermes, said another lawyer Jonathan Harris.

The case was filed on January 14, 2022, and the trial began on January 30, 2023; the verdict is expected soon.

Authentic Hermes Birkin bags are very expensive, making them a style statement for the elites of society. Not anyone can buy them. One needs to develop a relationship with the sales representatives, establish a purchasing history, and, most importantly, testament and knowledge of the brand with time. All these requirements make the bag insanely tough to buy, even if one has $27,000 or so lying around.

Rothschild filed a motion to dismiss the case in march 2022, which US District Judge Jed Rakoff rejected on May 6, 2022.

The case deals with the First Amendment regarding freedom of expression; this allows them to express their views. But in the case of NFTs, they bear authenticity and all the information from the creator to the current owner. These digital assets are a new class; their duplication in the name of art or expression can not be tolerated.

Although it seems simpler, the case in question is one company launching an NFT collection inspired by a product. Getting inspired by something and creating an art form is okay, but monetizing the act should not be allowed. Or, the original party should be involved in profit sharing or anything that would not leave them out of the equation, as they were the ones who came up with the original.