Hermes International SA was successful in persuading a federal court in Manhattan on Thursday not to dismiss its trademark action against an artist who was selling “MetaBirkins,” non-fungible tokens mimicking the French fashion house’s Birkin bags, as a result of the artist’s sales.
Following a hearing on Wednesday, U.S. District Judge Jed Rakoff issued a one-page judgement rejecting Mason Rothschild’s petition to dismiss the lawsuit. According to him, he would explain his rationale in a subsequent opinion.
The case is being closely followed because it has the potential to clarify how trademark law will be applied to NFTs, which are digital assets that have recently gained popularity and may be used to validate the originality of artwork.
Rothschild’s counsel refused to comment. A request for comment from Hermes and its lawyers was not immediately returned.
Hermes filed a lawsuit against Rothschild in January for his MetaBirkins, which represent the company’s Birkin bags wrapped in brightly colored fur and embroidered flowers. According to Hermes’ complaint, Rothschild started selling the NFTs at the Art Basel art festival in Miami in December without the company’s authorization and had sold more than $1 million worth of them by the time the case was filed.
The firm referred to Rothschild as a “digital speculator” and MetaBirkins as a “get rich fast” scam, and said that “the label of ‘artist'” does not permit him to utilize the Birkin brand to deceive customers.
Rothschild said in a March filing that the works remark on the “cruelty inherent in Hermes’ creation of its ultra-expensive leather purses” and are thus protected by the First Amendment of the United States Constitution.
In addition, the statement said that his work “does not lose its First Amendment protection simply because he sells it” or employs non-traditional authentication methods to verify its authenticity.
The case is Hermes International v. Rothschild, which was filed in the United States District Court for the Southern District of New York under the case number 1:22-cv-00384.
Baker & Hostetler’s Gerald Ferguson, Deborah Wilcox, and Oren Warshavsky worked on Hermes’s behalf.
Lex Lumina’s Rebecca Tushnet, Mark McKenna, Rhett Millsaps, and Christopher Sprigman represented Rothschild.
Published By: Ifa Zamzami
