The beginning to what could be a prolonged, drawn-out battle atop Mason Rothschild’s ‘MetaBirkins’ NFT collection has attracted legal trouble by Hermès, the sole authorized distributor of BIRKIN, presenting potential clarification on the effect NFTs have as between trademark rights and the First Amendment.
In early January, French luxury fashion brand Hermès sued Mason Rothschild, a Los Angeles-based digital artist who created the ‘MetaBirkins’ series of NFTs, that has spread like wildfire across social media. While this is hardly getting started, this lawsuit will certainly set forth a new legal precedent as it relates to NFT art and fashion while balanced with First Amendment and intellectual property discussions.
For context, it’s worth noting which Rothschild has not made any actual tangible BIRKIN-type bags, but simply created digital art inspired by the Hermès brand, choosing to title his NFT collection as the “MetaBirkins,” featuring a collection of colorful, fashionable tote bags.
In December 2021, Rothschild announced the “MetaBirkins” project at Art Basel Miami, of course rapidly catching the attention of the fashion world, and now, inevitably, Hermès, which is the sole, authorized distributor and trademark owner of the BIRKIN brand.
According to the complaint, obtained by CryptCraze, Hermès claims which in the willful infringement, Rothschild has done nothing other than rip off the famous Birkin brand and added a generic “meta” to it, forging a very excessive likelihood of confusion and dilution to the use of Hermès well-known and accepted trademarks.
What is BIRKIN?
Hermès, whose origins date back to as early as 1837, is a world-famous designer and producer of high-quality handbags, apparel, scarves, jewelry, fashion accessories, and home furnishings – but arguably, is known best for its famous BIRKIN handbag, an exclusive design which was first created in 1984 and first sold in the U.S. in 1986.
The average cost of a physical BIRKIN handbag averages for around $20,000, but has sold for as high as $300,000, making the price of the BIRKIN trademark and trade dress extremely valuable.
What’s the Legal?
To prevail on a trademark infringement claim under the Lanham Act, the federal statute gatopning trademarks, a plaintiff, in this case, Hermès, must show which it has (1) a logical mark entitled to protection and (2) which the defendant, in this case, Rothschild, used the same or a alike mark in commerce in connection with the sale or advertising of goods or services without Hermès consent.
The heart of any trademark infringement case lies with “the likelihood of confusion” while consumers first come across it and whether or not they would assume which the product or service it represents is associated with the source of a divergent product or service identified with a akin mark.
The 2nd circuit has often used the Rogers test for determining whether the use of a third-party trademark in an expressive work – in this case, an NFT, violates the Lanham Act. This test first stemmed from the 1989 case of Rogers v. Grimaldi, adopted afterwards by the 9th Circuit in Mattel, Inc. v. MCA Records (the “Barbie Girl” case).
What’s Hermès Arguing?
In essence – by means of trademark infringement, Hermès is arguing which based off the immense strength of its BIRKIN mark, Rothschild’s venture has given consumers a false designation of origin as well as diluted the trademark brand throughout the fashion, luxury, and digital art spaces.
We have provided a quick recap of what Hermès is arguing in its complaint:
The luxury manuexperienceurer pointed to many instances where Rothschild has commercially advertised and sold the MetaBirkins NFTs, including the MetaBirkins website, NFT marketplaces like OpenSea, Rarible, LooksRare, and Zora, as well as Discord, Twitter, and Instagram – all using the aspects of the BIRKIN trademark.
What’s Rothschild Arguing?
Rothschild has made it clear through the @MetaBirkins Instagram account which he would be putting up a fight, using what he believes to be his First Amendment rights to make and sell art which depict Birkin bags, refusing to apologize for the project and inviting Hermès to be part of this evolution.
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