Hermès wins lawsuit against MetaBirkin NFT artist – Mason Rothschild was selling the digital fluffy handbags in the metaverse, but was sued by the luxury fashion house over trademark rights

Feb 9 , 2023

Hermès just won its case against digital artist Mason Rothschild over MetaBirkin NFTs. Photo: @masonrothschild/Instagram

On February 8, Hermès won its lawsuit against Mason Rothschild, the digital artist behind the MetaBirkin NFTs, awarding the luxury brand US$133,000 in damages

The jury found that Rothschild’s NFTs aren’t protected speech under the First Amendment, and the news comes after brands like Balenciaga and Nike announced their expansion into the metaverse

Luxury brand Hermès International SA won its lawsuit against the digital artist behind “MetaBirkin” nonfungible tokens after convincing a Manhattan federal jury that Mason Rothschild’s sale of the NFTs violated Hermès’ rights to the “Birkin” trademark.

The nine-person jury returned a verdict on February 8, awarding Hermès US$133,000 in total damages. They also found Rothschild’s NFTs aren’t protected speech under the US First Amendment.

The trial was the first ever to examine how NFTs – digital assets that exploded in popularity over the past two years – should be viewed through the lens of intellectual property law.

MetaBirkins created by artist Mason Rothschild. Photo: Instagram

Rothschild’s loss may have a chilling effect on NFT artists who want to use trademarks in their projects, according to Alfred Steiner, an intellectual property lawyer and artist.

“The commentary in Mason’s work was probably more difficult to discern because it was subtle,” he said. “It may have been lost on a pool of jury members or the general public.”

Emily Poler, a New York lawyer specialising in technology and intellectual property, noted that the case is fact-specific, and that “there is still room for artwork to be protected by the First Amendment”.

Shoppers in line outside a Hermes store in Beverly Hills, California. Photo: Bloomberg

Legal experts have closely followed the case, which could influence pending and future NFT cases that test the often blurry line between art and consumer products. The verdict comes as numerous fashion brands ranging from Balenciaga to Nike Inc. are announcing plans to expand into NFTs and the metaverse.

The 100 MetaBirkin NFTs are linked to digital images depicting Hermès’ iconic Birkin luxury handbag, but covered in colourful, cartoonish fur instead of leather. Rothschild created and sold the NFTs in late 2021 after an extensive marketing campaign through his social media and website.

The jury determined that the NFTs are more akin to consumer products subject to strict trademark laws that protect brands from copycats and those looking to capitalise on their goodwill.

“What happened today was wrong,” Rothschild said in a statement. “What happened today will continue to happen if we don’t continue to fight. This is far from over.”