NFT Maker Hermès Loses Trademark Battle with Metabirkins'

There has been a ruling by a New York jury that selling "Metabirkin" non-fungible tokens infringe on the trademark of luxury brand Hermès. The trial results are out this morning, and a potential landmark decision has been made in the confusing world of NFT intellectual property rights. Despite the contention of Mason Rothschild, the creator of the tokens, Hermès was awarded $133,000 by the jury which determined that the tokens did not qualify for First Amendment protection as speech.

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It was during an era of a boom in crypto-related projects in early 2022 that Hermès sued Rothschild over Metabircoins. The MetaBirkin project pairs unique digital tokens with themed images - in Rothschild's case, 100 photos of non-existent Birkin luxury bags covered in faux fur - to create a unique experience for users. In a court case presented by Rothschild, he argued that his work was in line with a tradition of artists depicting branded products, such as Andy Warhol’s images of Campbell’s Soup and Coca-Cola, and he emphasized the cruelty inherent in Hermès in that the company manufactures ultra-expensive leather handbags with fur designs that violate animal rights. I take the liberty of saying that these images, along with the NFTs that attest to them, are not handbags; they have nothing but meaning to them.

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Hermes has argued that the chain simply plagiarizes Hermès' famous Birkin trademark, calling Rothschild "a digital speculator trying to get rich quick by appropriating the brand." From Rothschild's work, it appears that he earned approximately 55.2 Ethereum tokens, which are worth about $91,000 at the moment. There are a number of arguments Hermès made regarding Metabircoins, including the threat that Metabircoins could potentially make it more difficult for Hermès to offer its own NFTs in the future (the tokens would have nearly doubled in value when the lawsuit was filed).

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As of late 2021 and early 2022, NFTs and crypto was a lot less popular than they were a year ago. As a result, the immediate impact of the case has been less dramatic than it was during its market peak. Intellectual property disputes over NFTs are common, so Hermès' victory could have a significant impact on future cases involving NFTs. As an example, Nike has sued reseller StockX for selling its running shoes with NFTs as digital receipts for the sale of its shoes. Furthermore, it may also motivate artists to sell tokens based on well-known brands in the first place, even though the NFT crash may act as a huge deterrent.