Birkin vs. MetaBirkins: When Art Inspiration Led To Legal Accusations The space of Non-Fungible Tokens is still a developing one, and Hermes International v. Rothschild will play a pivotal role in future developments

The space of Non-Fungible Tokens in recent times has seen an influx of digital assets and enthusiasts; however, it is still developing. The broad knowledge and features of NFTs have made it a quick sensation in the world of art, fashion, and sports.

However, there needs to be a proper legal route to protect the trademark, prevent the misappropriation of names, and creative artistic freedom.

And that is why the ongoing Hermes International v. Rothschild is going to be a landmark judgment on how trademark law will be applied to NFTs.

The case:

Los Angeles-based interdisciplinary artist and designer Mason Rothschild launched his 100 furry digital handbag collection 'MetaBirkins' in December 2021, a homage to Hermès' signature 'Birkin' collection. Furthermore, he states his inspiration was the French luxury design house's 'fur-free' initiatives and the adoption of alternate textiles. Each NFT had a starting price of 0.1 ETH (approx $450 at the time of release).

However, Hermès was quick to retaliate and slap Rothschild with a cease and desist letter in mid-December and with a trademark lawsuit in mid-January 2022. According to Reuters, MetaBirkins made $1 million in sales before OpenSea, and fellow marketplaces banned Rothschild and MetaBirkins.

The points of contention:

Hermès pointed out that 'MetaBirkins' simply rips off the luxury handbag's Birkin trademark and adds the generic prefix of 'meta'. "Meta" and "metaverse" refer to virtual worlds and economies where digital assets such as NFTs can be sold and traded," the lawsuit further added. Additionally, Rothschild was alleged to have made a fortune by marketing and selling virtual rights over Hermès rather than real-life rights. "Defendant has openly acknowledged that he elected to sell his NFTs as METABIRKINS because a BIRKIN handbag is a highly valuable asset in the physical world," the document shared.

Prominent brands such as Nike, Balenciaga, Jimmy Choo, Dolce & Gabbana, Gucci, Louis, Adidas, Prada, Balenciaga, Tommy Hilfiger, and Ralph Lauren have entered the segment through various means. And MetaBirkins' deceptive origin may hinder customers, and Hermès plans to enter the NFT ecosystem.

Rothschild published a public response to the cease and desist letter and argued that the First Amendment protected his right to create art based on self-interpretation. "With that understanding, MetaBirkins is a playful abstraction of an existing fashion-culture landmark. I re-interpreted the form, materiality and name of a known cultural touchpoint. MetaBirkins are also a commentary on fashion's history of animal cruelty, and its current embrace of fur-free initiatives and alternative textiles. My aim is always to create additive art projects that contribute positively to the culture," read his December 23, 2021, Twitter post.

In May 2022, Rothschild filed a motion to dismiss the case, but his plea was rejected. Meanwhile, Hermès' plea for summary judgment in October 2022 was also denied.

The lawsuit moved to trial at US District Court for the Southern District of New York on January 30, 2023, and has been in and out of the courtroom for six days.

The jury is expected to give their verdict this week.